leb 320 final exam terms

quid pro quo

"this for that" supervisor says or implies that a tangible job benefit is on the line

Fraserside v. Youngtek Solutions

- 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 contacts" - analysis: youngtek has no offices, no employees, no phone numbers etc. clicks on website by iowans don't do it - solution: specific personal jurisdiction requires the P's injury arise form D's activities in the state or uniquely or expressly directed toward the state. - D no more directed its activities at Iowa than ant Uzbekistan, suit dismissed

no private property will be taken for public use w/o compensation

- 5th amendment 1. physical taking- under eminent domain right, federal gov take peoples land and say that they need to do this for federal reasons but they must provide compensation 2. regulatory taking- impose zoning rules that make your property worth less than it originally was. only if regulation renders your land worthless is it viewed as regulatory taking - this clause can be applied to allow for gov to take trade secret info for corporations

equal protection clause

- 5th amendment in constitution, 14th amendment says state gov must also provide this - strict scrutiny- gov needs to come up w/ compelling reason for discrimination on basis of race, religion, national origin etc. - intermediate scrutiny- reserved for situations of gender discrimination, gov needs to come up with important gov interest - rational basis review

due process of law

- 5th amendment in constitution, 14th amendment says state law must also provide this 1. substantive due process- looks @ content of statutes and says they must be @ least minimally fair or will be struck down 2. procedural due process- if gov is going to take stuff away they have to give us due process of law- how much process we are entitled to depends on whats being taken away. The more severe, the more process you get

first phase: pleading phase

- once the summons is called on the defendant, the defendant can: 1. file a motion to dismiss- argument based on law- have to assume that claims made by the plaintiff are accurate - defendant says what the plaintiff says is true but I should still win for another legal reason - motion is filed prior to filing an answer, - ex: plaintiff waited too long to file complaint, etc 2. if motion of dismiss is not filed or denied- defendant files an answer (contains defendants version of the facts, has to include a denial, various affirmative defenses) 3. occasionally, rarely, defendant does nothing- default judgement is rendered against the defendant

Rem jurisdiction

- established by having property within the jurisdiction of the court = can satisfy jurisdictional requirements for a case

implied warranty of fitness

- ex: if you want to go mountain climbing and a shop sells a merchantable rope for mountain climbing, but it frays during the activity--> the purchaser can file lawsuit for a breach of this __________

summary judgement motion

- filed after discovery - judge reads depositions, interrogatories, documents, etc. and makes a decision if there is no genuine issue as to any material fact - if both parties make good points there is a trial - generally easier for a defendant to win than a plaintiff (defendants need to prove there is no genuine issue of material fact- plaintiff must produce evidence strong enough to prove all elements of the claim

Ginsberg case

- ginsburg was acquiring EZ corp and Katz Media - brother and father bought shares and sold them after acquisitions making huge profits - jury found Ginsburg guilty, judge disagreed and overturned decision, SEC appealed and won and ginsburg was found guilty RULE: jury can decide on their verdict, judge can only overturn the case if it is obvious that the court was wrong

arbitrary and fanciful terms

- given the strongest protection by the law

powers of congress

- in article 1 section 8 (18 things)- enumerated powers - conservatives argue congress can only do these 18 things - liberals say rules need to be looser to allow fed gov to do what needs to be done

torts

- injured physically, property damage, ruined reputation, emotional distress, etc. - most cases are either intentional or negligence

kelo vs. city of new london

- landowners sued for an illegal taking when gov took their land in exchange for just compensation to improve economic development - b/c the plan for the land serves a public purpose, the takings challenged here satisfy the public use requirement of the 5th amendment - promoting economic development is a traditional and long accepted fx of gov, but this raises the question of wether we should be using eminent domain to promote economic dev. based on precedence, its totally legal

Lazar v. thermal equipment corp

- lanno would use the company work truck for work and personal uses - lanno got into an accident w/ Lazar. - Lazar sued the company claiming that lanno was w/I the scope of his employment at the time of the accident (lanno was on a route different from work and home, he was buying groceries) - even though it was in the opposite direction, liability depends on foreseeability and substantiality of the employees departure from his employers business - if an employee performs a tort intentionally, employer is less likely to be held responsible

Second phase: discovery phase- attorney pursues facts

- parties can take depositions between all key witnesses of the case - can trade interrogatories (written questions that the other side has to answer under oath) - can trade request for production (all the contracts that are in the file that relate to the company; all emails sent between the parties etc. - after discovery, parties file summary judgement motion- facts are so clear there is no reason for a trial

flagiello v. Pennsylvania hospital

- patient is dropped & sues the hospital for negligence - case law said can't sue charitable institution for fault of its employees - no longer the case but since it is precedent or stare decisive they are unrightfully protected

Redd vs. NY state Div of parole

- redd complains that Washington touched her breasts

america invents act

- signed into law by Obama in 2011 - first to file priority (before it was first to invent priority) - you get 20 years of protection, after 20 years patent goes into public domain and anybody can make that product w/o paying anything to the person who invented

Tarasoff v. regents

- similar to soprano v. o'daniels - where affirmative duties are imposed in a list of special relationships - patient told therapist he intended to kill Tarasoff

trial court

- someone wins, someone loses - lawyers file pleading, select juries, witnesses, etc. - if unhappy w/ decision you can appeal once to an intermediate court

mandatory precedent

- supposed to follow it, courts above them have rendered it so but isn't always followed - enactment and interpretation of statues (corporate, criminal law, tax law, banking, consumer sales, motor vehicle law, municipal corporations, and commercial law)- majority of federal and state law result from statues

inside trading

- trading secret info thats not available to public @ large - has to be proven that person who did trading owes a duty under the law to disclose or abstain disclose- reveal info so everybody knows it, marketplace is level abstain- abstain from trading - consequences up to 20 years in jail and 10 mil dollar fine

TAMU v. Bishop

- used a real knife as a play prop and actor got stabbed - if wonios were employees of TAMU he could sue TAMU - found wonios were independent contractors and suit against TAMU was dismissed - scope of employment, deviation

Riley v. willis

- willis was walking a dog w/o a leash and it bolted in front of a car - willis leaned into the road and was hit - original ruling = Riley must pay 60% damages - Riley appealed issue: judge gave incorrect jury instructions (didn't tell them there was a law that a dog must be on a leash) Decision: reversed and remanded for a new trial- failed to include negligence of plaintiff by not having the dog on the leash

Article 2 of Uniform Commercial Code (UCC) that has been adopted in every state except civil law state of Louisiana

- written in 1950s by a group of legal scholars and experts who weren't members of congress or state legislature and had no power to make the UCC law - this group told legislators that as of now contracts are defined by individual states and it would be more efficient if every state adopted the same set of rules of certain types of contracts - applies whenever you have a sale of goods - in most areas article 2 and common law are the same but there are some distinctions

procedural due process- what is required by due process

1. adequate notice 2. a meaningful opportunity to be heard (a hearing) 3. an impartial decision maker 4. in court actions, some substantial contact b/w the defendant and the forum state

general criminal defenses

1. defences negating intent (didn't intend to commit a crime- ex: infancy) 2. insanity 3. intoxication 4. mistake

constitutional liberties

1. freedom of religion 2. offers protection from gov 3. privileges and immunities clause 4. freedom of speech 5. equal protection clause- 5th amendment 6. due process of law- 5th amendment 7. no private property will be taken for public use w/o compensation- 5th amendment

white collar crime

1. insider trading (trading secret info that is not available to public at large)

alternative dispute resolution (ADR)

1. negotiated settlement- both parties settle out of court w/o going to trial 2. arbitration- go in front of a panel of arbitrators rather than a Jury so its cheaper, faster, and more private (arbitrators are experts in the field) 3. mediation- facilitates communication- not binding 4. summary jury trial- practice trial, before trials- one side may see it is more vulnerable and settle 5. minitrial- corporate execs view abbreviated presentation of evidence and begin settlement negotiations

Third phase: trial

1. select a jury (voir dire process, then peremptory challenges) 2. case is presented to the jury 3. closing arguments 4. jurors find facts w/I framework of law thats instructed by the law (ex: plaintiff has burden of proof- burden is to prove the case by a preponderance of the evidence- needs a little more evidence than the defendant- needs to convince 51% of the jury 5. jurors come back with a verdict

expressed authority

Directly granted to the agent direct order to do something ex: if an agent signs for a shipment the boss has to pay for the shipment b/c the agent had express authority to go and pick up the shipment

1. seller has a reason to know of the buyers purpose 2. seller has reason to know if the buyer is relying on sellers judgement or skill 3. buyer must rely on sellers skill or judgement 4. goods are not in fact fit for specific purpose intended by the buyer

what must a purchaser prove to win an implied warranty of fitness lawsuit?

1. need to show that you own a valid copyright 2. have unauthorizedly copied some of your original work and are using it

what must you have to file for a copyright infringement lawsuit if someone is using part of your work in their own work?

1. fixed in a tangible medium 2. idea needs to be creative/original

what must you have to have a copyright?

- distinctive words - distinctive phrases - distinctive symbols - distinctive designs

what things can be trademarked?

1. negative appraisals of harming others 2. values to reciprocity and fairness 3. requirements concerning behaving in a manner benefiting ones status in the social hierarchy 4. regulations clustering around bodily matters

what things do all moral codes contain?

implied preemption

congress passes laws in a particular area and courts say that congress has effectively occupied this area making it impossible for states to pass laws in this area w/o contradiction federal law - requires 2 conditions: 1. regulation is relatively comprehensive, 2. there is a need for uniform national regulatory policy in the area of regulation

utilitarian approach

consequential approach that judges choices by which one will give the best possible outcome - the happiest approach for most people - John stuart mill, Jeremy bentham

executory contract

contract has been made but one or both sides haven't yet fulfilled all of their obligations

hostile work environment

conversations about sex, jokes w/ sexual theme, and pornographic images are among things that can lead to such a claim though they are actionable only if severe or pervasive

friedman

corporations are not moral agents only managers and employees have moral status

freedom of speech

corporations have the same freedom of speech as individuals - advertising protected by freedom of speech - citizens united case- said corp. have the same freedom of speech right o lobby congress, make campaign, contributions etc.

personal jurisdiction

courts power over the parties involved in the lawsuit - plaintiffs submit themselves to courts jurisdiction upon filing a lawsuit - defendants court has a personal jurisdiction over a defendant if he makes an appearance or takes a formal step to defend his lawsuit - if defendant has continuous and systematic contacts with a jurisdiction it has general jurisdiction over the defendant - when a state has general jurisdiction over a party it has personal jurisdiction over the party

subject matter jurisdiction

courts power to her a particular type of category of case (some courts are created for a particular category) - ex: if a plaintiff filed a breach of contract lawsuit in a tax court

copy rights

cover creative works, expression of ideas - authors, songwriters, etc. file their work w/ ___________ office so they can use it later for litigation

civil law

cover rights and duties among private people and companies, looking for compensation from others

intentional infliction of emotional distress

covers purely emotional damages, harassment has to be quite severe before the plaintiff can win

fanciful marks

create a new word that didn't exist before ex: kodak, xerox, google

government

criminal case is brought by ___________

can be substantial and can cover lost profits and royalties on the defendants sales - defendant may be forced to pay the plaintiffs attorneys fees

damages for infringement-

descriptive marks

describes the product being sold ex: "rich in chips" for a choc chip cookie that has a lot of chocolate chips - can be protected by trademark law only if owner of trademark can establish a secondary meaning which means that when consumers see the mark they can recognize the company - if company has secondary meaning they have a trademark protected by they law

donee beneficiary

do have rights to enforce a contract (have person in mind when making a contract- ex: when grandma hurts her knee and can't mow the lawn so gets a loan service w/ her in mind to mow her lawn, if lawn company doesn't mow gma can sue b/c it was made w/ her in mind)

creditor beneficiary

do have rights to enforce a contract (knew about him, had him in mind, intended to benefit from the deal)

super soaker case

doctrine of equivalence example:

agent

does work on the principals behalf employed to work on the principals behalf to achieve what they want can be a minor, drunk, etc.

suggestive marks

doesn't come out and describe the item but it suggests its qualities and for that reason is given more protection - don't need secondary meaning ex: coppertone for suntan lotion, orange crush for soda- suggest the qualities of the products

reptutational multiplier

employees don't want to work for them anymore, suppliers don't want to sell to them, consumers don't want to buy, communities don't want them around - repetitional hit is usually greater than the max fine the gov can impose - when company is indicted for a crime it may mean that the company will cease to exist

doctrine of forum non conveniens

even if a court has personal jurisdiction, it can move or dismiss a case under _______________, if another court is more fit to hear the case

quasi-contracts

ex: if ben is injured in a wreck and taken to the hospital where they saved his life he is likely responsible for the bills even if he was unconscious during it. key to ________ is unjust enrichment- ben did not agree to pay the bill but would be unjustly enriched if the law didnt make him do so.

turns v. railroad friction products corporation

exception to the argument that if products are FDA approved and meets other federal regulations then the company/defendant is not liable if it injures someone.

apparent authority

exists when principal communicates directly to outsider and leads the outsider to believe that the agent has the power to do something ex: if I own a car ownership and tell employers no final sales w/o my approval the salespeople don't have implied or apparent authority to sell car. BUT if my longtime customer alls and says he wants a new car and I say no problem talk to my salespeople and they'll hep you out--> I am giving my salespeople apparent authority to make the final sale.--> if they sign a contract I have to honor it b/c I gave salespeople apparent authority - also have apparent authority by running an advertisement

writ of execution

filed when a plaintiff encounters a slow to pay defendant - allows sheriff to seize a defendants property and sell it at auction to help raise the money the defendant owes

ricci v. destafano

fire department: rank-exam showed that white candidates outperformed minority candidates

virtue ethics

focus on being a good person- being reliable, sincere, genuine, honest comes from Aristotle and other greeks

deontology

focus on the act rather than the consequences

1. the good was defective 2. defective rendered in unreasonably dangerous 3. defect caused them injury 4. defendant is a merchant

for the strongest theory for plaintiffs of implied warranty of fitness cases they need to prove--?

executed contracts

fully performed by both sides

self serving bias

gather, process, and remember info in a manner to advance our self interest and support our preexisting views

knight vs. just born case

got the one defective hot tamale candy and the inside of his mouth was burnt off (warranty of fitness)

criminal law

gov prosecutes a defendant for a criminal action violating criminal law (private person can't make a criminal case)

undue influence

grey area legal doctrine, requires plaintiff to show that defendant dominated will of plaintiff in a way that was successful (usually centers around elderly, much younger partner, etc)

state court

have general jurisdiction and much broader subject matter jurisdiction

federal courts

have limited jurisdiction (limited to types of cases the constitution says they can hear) - patent cases, trade mark cases, appeals from other specialized courts etc have to be brought to this court due to legislation passed

1. statutes of limitations (for everything that doesn't involve a death, there is a deadline for filing a lawsuit- a max act of time between time event happens to when you can sue) 2. comparative negligence (partial defenses-pay less than otherwise- if both sides were careless the plaintiff may be seen as 25% responsible then the defendant pays 25% less)

how are defendants able to get out of legal responsibility (paying) or minimizes paying?

1. misuse of product by the plaintiff 2. assumption of risk- assume a risk, know a product is defective but still use it

how can a defendant defend against a warranty of fitness case?

1. patentable subject matter 2 item that has utility (must be useful and accomplish something) 3. non obviousness requirement that needs to be met

how do you get a patent?

it has to be 2 way- both sides have to get some measurable benefit or changes don't have any legal effect

how does COMMON LAW say you must modify a contract?

you can change things around as long as both sides agree- BUT does not require a new consideration like common law does

how does UCC say you must modify a contract?

life of the author +70 years

how long does copyright protection last?

1. learn about vulnerabilities everyone has 2. develop a moral identity 3. keep ethical antenna up 4. monitor your rationalizaitons 5. notion of prescription- visualize yourself doing the right thing

how to be your best self-

peppercorn rule

idea that amount of value going both ways doesn't make any difference but has to be something of measurable value, both sides have to give something of measurable value

independent invention

if 2 competitors reach the same solution independently

uniform commercial code

if a contract sells goods or moveable, physical objects, this code determines legality

undisclosed principle

if an agent acts on behalf of a principal but does not disclose to the 3rd party that they are representing someone else

- if the agent is an employee (has regular working hours w/ the employer, if employer makes a mistake w/I the scope of employment or on the job- principle can be sued) ex: if a janitor forgets to put up a caution wet floor sign and someone slips- the customer can sue the principal directly (principal is NOT responsible for what the employee does on their own time)

if an agent commits a tort when is the employer liable for it?

- if the agent is an independent contractor (principal is rarely responsible for their torts - they have irregular working relations and are only hired when needed and do the same basic job in a lot of companies

if an agent commits a tort, when is the employer NOT liable for it?

judicial review

if it is claimed that a law is unconstitutional, the final decision is made by court system

dureess

if somebody puts wrongful force on you to make you sign a contract

supremacy law

if state law clashes with federal law, federal law wins

1. defendants version of the facts 2. denial 3. affirmative defenses

if they do not choose to dismiss the motion- what 3 things must a defendants answer contain

delegations

if you give away responsibilities it is called _______________

making an assignment

if you give away your right under a contract it is called _________________

modification

if you have a deal w/ somebody else and want to change it UCC and common law differ on this issue and whether you need to give new consideration to validly change a deal around

reverse engineering

if you sell a product, consumers can buy it, take it apart, and try to figure out how it works and if they an they can start selling that item. (so if you are selling an item that can be reverse engineered you should get a patent on it instead of relying on trade secret protection)

red rose transit authority v. North American bus industries

illustrates economic loss doctrine

fair use defense

in some cases it is fair for someone to use someone else's stuff ex: SunTrust Bank vs. Houghton Mifflin case

illegitimate norms

incompatible w/ hypernorms

nuisance

intangible invasion of property, bright lights, vibrations, sounds, etc.

battery

intentional tort theory- if someone physically harms you - physical bodily contact, allege that plaintiff intentionally caused the contact - usually goes along w/ assault b/c people are usually made afraid before defendant commits it CAN have _______ w/o assault if someone snuck up behind you and hit you behind the head and never saw it coming

university of Texas vs. KST electric ex of trademark dilution revision act

judge makes a huge mistake and says that UT logo is not a famous mark

noncompete agreements

lack a legal purpose and are thus unenforceable

fourth stage: appellate phase

last stage of the litigation process

full faith and credit clause

requires every state recognize court judgements and other public actions of its sister states if the court made a ruling within its jurisdiction

deontological approach

rule based approach 10 commandments kant (never use people as means to an end)

defamation

saying things about people that aren't true and can be harmful to their reputation

jurisdiction

scope of a courts power

discrimination law

small companies (less than 15 workers) have an exemption from what law? before 1964 there were no laws that banned __________

Supreme court

some states have 2 (one for civil, one for criminal) - must ask for a writ of certiorari to proceed and the answer is almost always no - generally only cases granted writ of certiorari are heard

literal infringement

someone copies every aspect of your invention and sells it themselves

doctrine of equivalence

someone uses parts of your invention to achieve the same objective but didn't completely use the entire thing (should win the lawsuit even in this setting)

incidental beneficiary

someone who the contract parties didn't intend to benefit from the deal but might ex: a stadium built outside a burger joint may increase revenue but if the contract falls apart you don't have authority to enforce it

intentional tort cases

something a person did on purpose, trying to cause harm, each defined precisely - juries awarded compensatory damages and punitive damages (punishment damages)- more money than harm has caused simply as a punishment for harm done - worse for defendants b/c of punitive damages

generic marks

something that describes the genus of the item under consideration ex: pencil, shoe, cap, etc. - not protected by the law - one individual cannot monopolize on a word used to describe an object

implied warranty of merchantability

sometimes express promises aren't made but there may still be a lawsuit b/c article 2 of CC says any time a merchant sells a good the law is going to read in and imply a promise that the good is merchantable (its of good quality). so even if the merchant doesn't promise anything about a good if the good is of low quality then this has been breached

implied contract

sometimes inferred by courts after examining the conduct of the parties

court of limited jurisdiction

specific to subject matter

long arm statue

specifies personal jurisdiction can be acquired over a nonresident defendant who has "done business" or committed a "tort" within the forum state

1. the original contract prohibits it OR if its 2. personal services contract (you want John to paint your portrait and ONLY John)

substitutions (delegations and making an assignment) can be made usually but you can't do it w/o the others permission if...

conformity bias

take their cues of proper behavior from the actions of others

goods

tangible, movable, physical items aka stuff (not a house, acre of land, service, etc)

Soldano V. O'daniels

law vs ethics family of deceased person sued bar across the street for not letting them use their phone to call the police - lower court dismissed case - higher court disagreed law vs ethics- point at which an action becomes legally required not only morally required

corporation

legal entity that is capable of owning property, making contracts, etc

1. defendants claim self defense in battery cases 2. defendants argue consent to get out of battery cases if you consent to do a dangerous activity

legal justifications for what would otherwise be viewed as wrongful conduct for defendants

statutory law

legal rules created by bodies or representatives

consistent norms

less universal and more culturally specific than hypernorms

- if they want to disclaim implied warranty of merchantability they must use the word merchantable or some synonym - if they want to disclaim implied warranty of fitness, they must put it in writing - express warranties usually cannot be disclaimed - warranty disclaimers must be conspicuous and not hidden - can't disclaim warranties if there: are deaths or serious personal injuries, is a big disparity of bargaining power (little consumer doesn't have choice in the matter when dealing w/ very large consumer) (amazon on websites have disclaimer saying that it disclaims all warranties- follows all rules also tried to disclaim all warranties express or implied but you can't disclaim express and that won't work)

limitations for merchants to disclaim warranties under certain circumstances:

- doesn't apply where injury isn't caused by defect in the product (instead by the way the product was used- ex: a tech miscalibrated the radiation tx on a cancer patient and burned them- lawsuit isn't on the machine but its negligence against the tech) - doesn't apply when the good has been substantially altered after it left the defendants hands - only available to remedy personal injuries and deaths, if loss is economic usually you can't use strict liability - red rose transit authority v. North American bus industries- illustrates economic loss doctrine

limits of strict liability:

- bilateral mistakes (you can get out of the contract- both sides are wrong about what they are selling) - unilateral mistakes (don't usually lead to voidable contracts unless they are obvious mathematical errors)

mistakes that may allow people to back out of a contract:

rotter vs. AVG technologies

mixed contract case

bilateral contract

most agreements, the two sides involved exchange promises

association of molecular pathology bs. myriad genetics case

naturally occurring DNA sequences- even when isolated from the body- cannot be patented but artificially created DNA is patent eligible b/c it is not naturally occuring

moral free space

norms are inconsistent w/ at least some other legit norms

contracts of adhesion

not negotiated but is presented on a take it or leave it basis

voidable contracts

typically one side is in a legally recognized weakened legal position when the contract is formed, one of the two sides has the option to call the whole thing off or enforce the deal (ex: a child making a contract w/ an adult)

promissory estoppel

under this doctrine courts have the ability to stop people from going back on their promises that might lead to gross injustices, requires people to follow through on agreements which aren't exactly contracts b/c they lack consideration (however in most cases if a deal lacks consideration it is not a contract)

brooks cotton vs. williams case

under what circumstances is a farmer/rancher a merchant?

void contracts

unenforceable

mirror image rule

unique to common law only applicable if you are selling services- offer and acceptance have to be mirror images of each other, otherwise there is no contract formed (if you don't offer and accept the same thing there is no contract formed) (HOWEVER, in UCC extra stuff added is ok)

incidental authority

unless the principal has indicated otherwise his or her agent has implied authority to do those things that are reasonable and customarily necessary to enable the person to accomplish the overall purpose of the agency

hypernorms

values that would be fully accepted in almost all cultures and organizations

1. what the defendant did wrong 2. prayer for relief (what the plaintiff wants- stop doing what the defendant was doing, pay for damages or both)

what 2 things does a complaint contain?

1. contract formation (under the FIRM OFFER RULE- if a merchant signs a written promise to keep an offer open for a set amt of time it must honor that promise even if it hasn't received any payment for it, UCC has gap filler provisions so even if parties forget to include some things in a contract- such as when deliveries will be made or how payment will be made) they can be determined by a court) 2. contract enforcement (article 2 contains a statute of frauds provision which requires that sale of goods over $500 must be in writing to be enforceable) 3. contract interpretation (if parts of a contract are vague- UCC directs courts to resolve disputes by examining- 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?) 4. 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 hones in fact and observe reasonable commercial standards of fair dealing in the trade)

what are article 2 key provisions?

fulfillment of purpose lapse of time occurrence of a specified event mutual agreement act of one party

what are examples of reasons of termination by act of the parties?

death or insanity bankruptcy miscellaneous changes of condition

what are examples of reasons of termination by operation of law?

1. we feel guilty if we don't 2. we feel shame if we don't and others find out about it

what are the 2 primary reasons we make ethical decisions?

1. communication and interpersonal skills 2. team skills 3. ethics

what are the 3 most valued traits of potential employees?

1. utilitarian approach 2. deontological approach (when you apply these two approaches they both generally give the same result- both say one of these choices is the best one- may sometimes lead to opposite results) 3. virtue ethics

what are the approaches for resolving ethical dilemma?

1. manifestation of an intent to contract 2. offer has to be reasonably definite (clear enough detail to figure out what the proposal is 3. offer has to be communicated to the other side

what are the basic parts that make a contract?

1. not a full blown discovery, may not get the real facts 2. can't appeal- decisions are binding 3. can be signed before there is a problem (fine print)

what are the disadvantages to arbitration?

1. trademarks 2. trade secrets 3. patents 4. copyrights

what are the four major types of intellectual property (IP)?

1. consent & capacity 2. general power of attorney grants the agent broad powers to act on the principals behalf 3. special power of attorney- act only in narrow ways 4. durable- assigns a relative as agent

what are the necessary elements of creation of the agency relationship?

- only if the agent indicates that they are acting for a principal and not in their own behalf - principal must have known or had reason to know of the essential facts about their transaction - must occur w/I a reasonable time after the principal learned of the transaction

what are the requirements for ratificaiton?

1. ID the ethical issue 2. get the facts 3. apply alternative approaches to the facts 4. reach a conclusion

what are the steps in moral reasoning?

1. ID ethical issue 2. establish what facts are 3. apply various alternative approaches to the facts to determine the best thing to do 4. reach conclusion and see if its the right thing to do

what are the steps of moral reasoning?

1. pleading phase 2. discovery phase 3. trial phase 4. appellate phase

what are the three phases of a case (litigation process)?

1. expressed authority 2. implied authority 3. apparent authority

what are the three types of authority an agent must have for the boss to honor the deal made with him? (if an agent signs a deal w/ no authority the agent may be held to live up to the deal but the boss doesn't have to)

1. libel- written defamation (easier for plaintiffs to win) 2. slander- verbal defamation (plaintiffs have to demonstrate special damages which means they have to show a particular way they have suffered harm- plaintiffs often can't do this so it is more difficult for them to win (difference b/w the two is that libel is easier to win)

what are the two types of defamation?

1. express ratificaiton 2. implied ratification

what are the types of ratification of unauthorized transactions?

- JNOV (judgement notwithstanding the verdict) - JMOL (judgement as matter of law)

what can a party file after a jury verdict?

1. you own a valid trade secret and took the appropriate security measures 2. defendant misappropriated the trade secret 3. defendant used the trade secret

what do you have to prove if you want to win a trade secret misappropriation claim b/c you think one of your competitors has stolen a trade secret?

1. show likelihood of confusion to consumer 2. look @ how close are the products, the symbols, the defendants intent, evidence of consumer confusion, advertising outlets, etc. - you can get damages for sales lost - if you can't show a likelihood of confusion you could still win through dilution theory and stop the other use

what do you need to do to sue for trademark infringement if someone uses your trademark or something similar?

1. defendants actions violated a criminal statute (almost all criminal law is statutory, not common law doctrines) 2. defendant actually committed the illegal act 3. there was level of intent (scienter)

what does a prosecutor in a criminal case have to prove?

obedience reasonable care duty to account duty to notify loyalty

what duties does an agent owe a principal?

- subordinate has their own business/profession - they use their own tools, equipment, or workplace to perform the task - they determine their own working hours - they are paid by the job not the week or month - they have authority to choose their own assistants - they perform a task not part of the employers regular business - employer treats subordinate as a non employee for tax purposes

what facts increase the likelihood of a subordinate being an independent contractor and not an employee?

- injured person can sue for damages - cases are brought under contract law (plaintiffs can seek compensatory but not punitive damages) - defendants can avoid liability by raising a valid defense (ex: the statute of limitations has run out)

what happens when a warranty exist and is breached?

- normal sale of good is is governed by article 2 - normal sale of service is governed by common law - if this is read as a sale of good- article 2 is going to read in a promise that the good is merchantable - if common law applies the promise is not going to be made and rights as a purchaser are going to be much less

what happens when you have both a good and a service?

implied authority

what is customary gives agents the legal authority to do anything customarily necessarily to complete the expressed orders ex: if an agent is told to pick up a shipment from Dallas but the truck runs out of gas and the agent fills the company car up the boss has to pay for the tank of gas b/c that is needed to complete the order

patentable- processes, machines, products, composition of matter nonpatentable- naturally occurring substances, ideas, scientific principles (debate over the human genome- what is patentable and what is not b/c it is in between the line of naturally occurring and inventive)

what is patentable and nonpatentable subject matter?

1. purpose and character of the use (if it is for parody, satire, education, research- defendant will probably win, if defendant transformed the item it is okay) 2. nature of the copyrighted work (the more creative it is the more protection it gets) 3. portion of work used relative to the whole 4. economic factor (what is the impact of economic value of the copyright?- parody seldom substitutes the original)

what is the four part test to determine if a fair use defense could be used?

the level of trust in a society

what is the most important factor in determining level of economic development?

1. the record 2. written briefs 3. oral argument

what is the process of appeal?

they pay damages

what is the punishment for civil law if the defendant loses?

they could go to jail

what is the punishment for criminal law if the defendant loses?

to settle disputes between civilians

what is the purpose of civil law?

to protect safety of people

what is the purpose of criminal law?

1. making an assignment (giving away rights) 2. delegations (giving away responsibilities)

what kind of substitutions can you make in a contract?

Things that are obviously wrong- insider trading, paying bribes, violation of foreign corrupt prices act, securities fraud, etc

what kind of things do white collar criminals go to jail for?

1. subject matter jurisdiction 2. personal jurisdiction

what must a court have in order to render effective judgement in a case?

Ashcroft vs. Iqubal

Supreme Court ruled that because the case was searching for Arab muslims involved in 9/11- detaining and arresting Ibqal was not discriminatory - complaint also failed to show how Ashcroft and mueller were responsible for tx while in custody - approved motion to dismiss

unilateral contract

can only be accepted or formed when somebody does something ex: when someone says they will pay a $100 reward it is only given when the dog is found

individual or company

civil case is brought by _________

employment at will doctrine

companies can fire people at any time for any reason as long as they aren't violating a specific law ex: can be fired for wearing an ugly tie if the employer doesn't violate a law by firing the employee

invasion of privacy

companies overly monitor employees or use their image in advertisements w/o their permission can mount to disclosure of public facts or false light a variety of privacy rights have been created in courts to address these issues

express warranty theory

company makes an express promise (promise in words) about a particular product - if products don't live up to these types of expectations they breach a ____________________ an express promise and the purchaser can file a lawsuit

offers protection from gov

Gov can't take rights away from us, these rights don't apply to private citizens ex: your boss can take away freedom of speech if he has his own private company

standard fire case

- Knowles filed a class action case against standard fire co - stated they harmed thousands of policy holders by failing to include a general contractor fee - said he wouldn't seek more than $5 mil to keep the lawsuit in state (issue if this removed it from the CAFA's scope)--> federal district judge said it did and moved it to Arkansas state court, after being decided to hear an appeal standard fire brought it to the supreme court - under CAFA (class action fairness act) stating a class will not have damages exceeding $5 mil does not prevent the defendant from removing the case to federal court - plaintiff cannot limit the damages of all the other members of a class

Girard v. myers

- Myers bought land and divided it into parts - each part had an investor and he created a contract w/ investors about right of refusal and the opportunity to either buy the land at a lower price or get commission off of the sale

intermediate court (appellate)

- NOT a do over, panel of judges reviews what happens to determine if a mistake was made

Olson v. northern FS inc

- Olson got fired even though he had more than 40 years experience and awards and replaced him w/ a 22 year old w/ no experience

intentional interference with business relationships

- entice people to break contracts with competitors - the largest judgment in the history of the US $11,100,000,000 came in a case of this - texaco v. pennzoil (@ state level (NOT a part of common law) most states passed DECEPTIVE TRADE PRACTICES ACTS that prohibits wrongful business practices that misleads consumers. congress weighed in and regulated unfair competition in the Lanham Act)

CISG- convention for contracts for the International sale of goods

- a convention that has been signed by 79 nations across the world - if a company from different countries do business w/ each other selling goods, the _____ governs that contract - ______ has a lot of elements of law from other countries - if you don't explicitly put in the contract that ______ doesn't apply and you want to use US law or another law instead you can't do that - travelers v. saint-goblin technical fabrics case (companies purposely avoid having laws applied that they don't want applied)

Perlman v. mcdonalds

- complaint did not adequately specify proximate case (generalized complaint against fatty food that mcdonalds serves) and should be dismissed for that reason as well - judge dismissed the complaint granting plaintiff permission to replead

statutory interpretation

- courts job to figure out what the legislature would have wanted to do in this situation - purpose rule: figure out what prob the legislature was trying to solve w/ the statue - legislative hx: based on debates and documents

corporate social responsibility

- deals w/ organizations and their employees (orgs can be hugely damaged by unethical employees) - managers need to cultivate an ethical corporate culture (set one up by having a Code of conduct thats put together carefully w/ input from employees) - corporate execs need to punish employees that don't live up to code of conduct and reward employees that do - have stories where employers show employees how ethics have been used- heres a story where we had the chance to take advantage of someone, get away w/ something.. etc but instead we did the right thing) - hire ethical employees - treat employees well (if mistreated, they are more likely to act unethically)

negotiated contracts

2 parties negotiate and agree

1. lawsuits regarding federal law (federal statute or provision in the US constitution) 2. cases between people from different states worth at least $75000

2 types of lawsuits that federal courts have subject matter jurisdiction in

other criminal defenses

5. entrapment 6. self defense, defense of others

criminal case

burden of proof is on prosecutor to prove the case beyond a reasonable doubt in what kind of case?

sexual orientation discrimination

NOT banned by federal government BUT 20/50 states have now banned ___________

contracts

________ amount to an enforceable promise

consent

________ is commonly established when parties sign an employment contract, but words or actions can also indicate ______.

3rd parties

________ typically don't have any rights in a contract, event sought they may have a lot to gain/lose from the contract

consumer product safety commission (CPSC)

__________ conducts safety research and creates safety regulations that cover thousands of products

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

patent law

__________ is to encourage creative activity and inventiveness

merchants

___________ makes his living buying and selling goods, manufacturers, retailers, wholesalers - certain provisions in article 2 apply only if you are a _______________

tort lawsuit

a civil lawsuit that is not a contract law (where someone broke a contract)

nonexistent principal

a person attempting to act for an organization that is not legally recognized as a separate entity

mailbox rule

acceptances always count as soon as they are sent even if they don't get to the offerer after a few days - if you try to terminate a offer that message doesn't take effect until the other person actually receives the message

general trial courts

all cases except those by limited jurisdiction courts - all contract law, criminal law, and corporation law

fraud

allows people to undo a contract

1. offers are terminated (1. killed by being revoked, 2. rejected by person who receives them, 3. offers lapse (their is an expiration date), 4. offer is destroyed by operation of the law (object is destroyed, person passes away, etc) 2. offers can be accepted

an offer for a contract exists until....

exculpatory clauses

another sort of agreement that sometimes has no legal purpose ex: waivers- "not responsible for car if it is damaged" usually work for recreational activities, but for non recreational situations _______________ are much less likely to prevent you from bringing a case forward (courts decide if someone is being negligent)

trade secrets

any bit of info a company owns that gives it a competitive advantage over its competitors when this info is not widely known - important for employees to sign non disclosure agreements to maintain these

privileges and immunities clause

applies to everyone no matter what state, prevents states from discriminating against citizens who live out of state --> important in binding the states together into unity in the early years, applies to individuals not corporations

age discrimination and employment act

applies to workers 40+ years

voir dire process

attorneys question jurors to see if they are biased, if they are biased then attorney launch a challenge for cause (ex: doctor can't be on a malpractice case) - if judge decides there is a risk for bias then judge excuses that juror -when all jurors passed cause both attorneys exercise peremptory challenges (any case against except on basis of race or gender)

genetic information nondiscrimination act

bans certain use of genetic tests that tries to make forecast about whether someone will get sick in the future

negligence

based on carelessness - in simple cases juries can only award one single type of damages (or one single pile of money) when plaintiffs are successful - compensatory damages are supposed to be enough to fully compensate for harm

assault

based upon fear or apprehension, if someone is made reasonably afraid that they are about to be part of a battery cause then its an this kind of case. can't have ______ without battery. (if someone pulls a gun on you but doesn't shoot it then its a _________)

stare decisis

basis for common law- that previous decisions are used as the precedent

civil case

burden of proof is on plaintiff to prove their case by preponderance of the evidence (more evidence on their side than defendants) is in what kind of case?

commerce clause

one of the 18 powers of congress - congresses power to regulate commerce and things that affect interstate commerce - limits the states: states regulate commerce (state and federal laws) 1. expresses preemption (b/c of supremacy clause), congress has power to tell states to stay out 2. implied preemption 3. federal preemption - states can't discriminate interstate commerce- can't favor their merchants - states also can't unduly burden interstate commerce- can't put in procedures and rules that make it hard for people out of state to do business here

sarbanes-oxley

one of the strict laws that gives punishments for insider trading and other business related crimes

covenant

one party agrees not to compete with the other ________ make for bad public policy b/c they might limit someone to work or switch jobs and courts will sometimes refuse to enforce them if they are unreasonable ex: systems and software vs. barnes

industrial molded plastic products inc. v. j gross and sons inc.

ordered 5 mil cups, only picked up some didn't pay or pick up the rest due to decline in the clothing industry contract was signed by Peter (agent)

writ of garnishment

orders third party (ex: bank) to send money or property to a court

common law

originated in court opinions (creates precedents) - judges written down decisions in the past and use as precedent (stare decisive)- if outdated, precedent is modified or overturned - legal principles and ideas that have been developed by court cases ex: selling services is typically under _______

express contract

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

1. they work for the company whose shares are being traded, people on company payroll 2. temporary insiders (not on common payroll, but brought in and given secret info for a business purpose (auditors, lawyers, investment bankers, consultants, etc)) 3. misappropriation category (if company A wants to buy B they need to raise money so they hired an investment banker and notices that A is going to buy B at a substantial premium over market price and the banker can make a lot of money if he buys B stock before its publicly announced. The banker is not related to B in anyway but has misappropriate info that came from his client and employer and used it for his own purpose 4. tippee- if any one of the above gives a tip of insider info to another person, both the tipper and the yippee are liable

people have an option to disclose or abstain inside trading if:

acceptability heuristic

people judge their actions depending on if it is acceptable to superiors or not

role morality

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

belief persistence

people tend to persist in beliefs they hold long after the basis for those beliefs is substantially discredited

trespassing and nuisance

people that annoy you @ your house/property

fundamental attribution error

peoples tendencies to underestimate how situational factors affect others decision and overestimate how much they affect their own

valid contract

perfect contracts, complete enforceable

reality of consent

person makes a contract and something happens that creates a voidable contract- consent probs have to do w/ one contract at a time

principal

person who wishes to accomplish something employs the agent - must be sane, at least 18 years old, and sober

trespassing

physically cross property

disparate impact cases

plaintiff alleges that a company is not intentionally discriminating but it has policy in place that excludes some types of people over others ex: a fire station says you have to bench a certain weight or else you can't get the job and a woman can't bench that weight can sue that the test has the impact of discriminating against women to defend its policy- company has to meet the business necessity defense- has to convince court there is a strong business reason that makes it necessary to test or the reason it is testing - juries can only award compensatory damages - punitive damages are reserved for intentional wrongful acts - companies will prob pay less than in a disparate treatment case

desperate treatment cases

plaintiff alleges that the company is allegedly not hiring people like them or promoting people like them defense for company is bona fide occupational quality defense- this is exceedingly hard to meet - juries have the option of awarding both compensatory and punitive damages

strict liability

plaintiffs are not required to show a defendants fault in a conventional sense - instead they are held to be automatically liable even if they were "as careful as they could be" (defendant has to pay if they put out a good that was defective and unreasonably dangerous)

civil rights act of 1964

prohibits discrimination based upon race, religion, nationality, or gender

warranties

promises that are made about a product

utilitarianism

promote the greatest good for the greatest number of ppl

trademark dilution revision act (TDRA)

protects famous marks company can stop use of other people using the same name by showing that the mark was either whittled away (diluted) or tarnished

Americans with disabilities act

requires companies to make reasonable accommodations for workers who are impacted by disabilities

consideration

the legal notion that for a contract to exist BOTH sides have to get something measurable out of a deal (if it is one way you don't have an enforceable contract b/c you don't have __________)

plain meaning rule

the primary source of legislative intent is the language that makes up the statue itself- however- court must interpret a statue before using it as a basis for deciding a case at times

1. corporate espionage 2. breaking and entering 3. computer hacking 4. bribing etc.

things that are misappropriation:

kant

treat others as you would want to be treated

system of courts

trial courts--> intermediate courts--> supreme courts (for federal and state)

1. breached a duty of care toward you (everyone has a legal duty of care to someone else at any time- usual duty of care is to be reasonable in the circumstances) 2. proximately caused some kind of injury, financial loss, or problem (has to do w/ foreseeable harm- expected the prob to hear- ex: if a student asks to borrow a pen but doesn't say why and then stabs someone it is not foreseeable harm, but if they say it is for stabbing purposes then you are a proximate case to the individuals harm)

what things do plaintiffs have to prove (establish to a juries satisfaction) in order to win a negligence case?

1. ejusdem generis 2. expression uniusest exclusion alterius- assumed that when there is a list of certain items the exclusion of others is intentional

what two common grammar rules are used by courts to interpret legislative intent from the words of the statue?

1. literal infrignement 2. doctrine of equivalence

what types of infringement are there?

1. express warranty theory 2. implied warranty of merchantability 3. implied warranty of fitness 4. negligence (carelessness) 5. strict liability

what ways can you support a lawsuit against a warranty?

trade dress

when a products distinctive design or appearance is protected it is called a ________________________

when a plaintiff files a complaint (petition) - plaintiff files for both the complaint and response, defendant files an answer

when do lawsuits start

when consent and capacity have been established

when does a person legally become an agent?

- if the superior directs/intends the tort to be committed - if the superior allows the subordinate to operate dangerous equipment knowing they are unqualified - if they fail to provide supervision to subordinate

when is a superior responsible for a tort?

- if 3rd party fails at bargain, person is liable to the principal - 3rd party owes no responsibility to the agent unless agent is party to the transaction - 3rd party is liable for their torts to any party injured as a result

when is the 3rd party liable?

breach of duty exceeding authority assuming liability nondisclosure of principal commission of a tort

when is the agent liable?

false imprisonment

when people are held against their will they can seek compensatory and punitive damages (esp. in retail businesses this is important- most stats have shopkeepers exemptions that give special abilities to retailers to reasonable detain people suspect of shoplifting)

arbitrary word

when somebody takes a word that doesn't have anything to do with a product and puts the two together and then with advertising promotion, gets the two linked together in the consuming publics mind ex: camel cigarettes, apple computers, ivory soap

committing genericide

when something goes from being your trademark to being the name everybody uses when they talk about the item (ex: aspirin, used to be a trademark owned by Bayer but now is used to ID all painkillers so bayer lost ownership of the name)

power of attorney (POA)

when the scope of an agents power is defined in writing the written authorization is a _____________

service mark

when the service provided by a company is protected it is called a _____________

work for hire

when you hire someone to come up with a jingle or slogan etc. - protects the copyright for shorter of 120 years from date of creation or 95 years from publication (1st time company uses jingle)

1. if you promise to be a secondary backup person responsible for paying someone else debt 2. contracts that involve real estate 3. contracts that will take over a year to complete 4. contracts for sale of goods worth more than $500 (UCC doesn't have specific rules, but common law has a checklist of specifications)

which contracts MUST be in writing to be enforceable?

Title VII of the civil rights act of 1964 (does NOT) prohibit based on homosexuality

which law prohibits discrimination against race, color, religion, sex, natural origin?

consumers and companies

who does a trademark protect?

- people who are under 18 (children form voidable contracts- can walk away from contracts at any time and demand a full refund) - insane ](insane people can't make contracts, any agreement they make is void) - people who are intoxicated (unlikely you can back out unless you are about to pass out, most pole who are intoxicated can't claim a voidable contract)

who does not have the capacity to make a valid contract?

US patent and trademark office

who grants trademarks?

superior cannot be criminally prosecuted for a subordinates wrongful act unless the superior expressly authorized it any criminal responsibility lies on the shoulders of the subordinate

who is responsible for criminal liability- the superior or the subordinate?

burden of proof (if a plaintiff fails to meet the burden of proof a judge may grant a defendants motion for a directed verdict and end the case in the defendants favor)

why do defendants not necessarily have to present anything at all to win a lawsuit?

- behavior ethics field - understand how vulnerable you and others are to making bad decisions, even if you are a good person - by focusing not on ethical issue but focusing on other things the ethical issue fades into the background and we are motivated to do something unethical - obedience to authority- boss tells you to do wrong thing so you are more likely to - conformity bias- team is doing something wrong so your behavior conforms to those around you - often a framing issue- look at something thats an ethical issue through the lens of your business

why do good people do bad things?

behavioral ethics

why people make the decisions they do

legal purpose

without this a contract is not enforceable some contracts lack _________ b/c they violate a statute (are about something illegal)

family and medical leave act

you can require a company to give up to 12 weeks off of work to deal w/ childbirth, adoption, serious. medical condition within immediate family companies don't have to pay salary or wages while gone but they do have to put you back to work when you return