Business Law: Exam 1

Circuit

13 Circuits in Federal Court System Geographical area served by each court of appeals

Law

A body of rules of action or conduct prescribed by controlling authority and having binding legal force

Taking Clause

A clause that allows the government to take property for public use Requires: Public Use Just compensation

Equal Protection Clause

A clause that provides that a state cannot deny to any person within its jurisdiction the equal protection of the laws Laws cannot classify and treat similarly situated persons differently Artificial persons, such as corporations, are also protected Does not make the classification of individuals unlawful

Public Domain

A copyrighted work enters the public domain on January 1st of the year following the year of expiration Once in the public domain, anyone can publish or produce the work

In Personam Jurisdiction

A court's jurisdiction over a person. Always have over the plaintiff, because the plaintiff filed the lawsuit

Types of Dilution

Blurring and Tarnishment

Rejoinder

Defendant's response to Plaintiff's rebuttal

Breach of Duty of Care

Failure to exercise care or to act as a reasonable person would act

Rebuttal

Made by plaintiff's attorney to rebut defendant's case

Uniform Trade Secrets Act

Most states have adopted this act to give statutory protection to trade secrets State unfair competition laws allow the owner of a trade secret to bring a lawsuit for misappropriation against anyone who steals a trade secret

Patent Number

Number assigned to invention when patent is granted

Standing to Sue

Plaintiff must have a stake in the outcome of case

Which of the following is NOT a skill developed through reviewing the court cases in the textbook?

Technical Computer Skills

Appellant

The appealing part in an appeal

Which of the following is not a relevant question according to the IRAC method of critical legal thinking?

Which executive nominated the judge presiding over the case?

No Electronic theft Act (NET Act)

Willful infringement on a copyright is a crime Makes it a federal crime to reproduce copyrighted electronic works

Privileges and Immunities Clause

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states" No state shall make or enforce any law that shall abridge the privileges or immunities of the citizens of the United States The clauses prohibit states from enacting laws that unduly discriminate in favor of their residents The clauses apply only to citizens and do not protect corporations or aliens

Consumer Expectation Test

(Used in ⅓ of states) In determining whether a defect exists, this test requires the plaintiff to demonstrate that the product is more dangerous than a reasonable consumer would expect

Risk-Utility Test

(used in ⅔ of states) Test weighs various factors to determine whether a defect exists Gravity of Danger Likelihood Injury Will Occur Social Utility of the Product The Availability and Cost of Producing Safer ALternative Design The Ability of User to Avoid Injury

Reasonable Professional Standard

A legal standard that defendants who have particular expertise or competence are measured against.

Pretrial Motions

A motion a party can make to try to dispose of all or part of a lawsuit prior to trials

Appeal In a Civil Case

Either party can appeal the trial court's decision

District

Geographical area served by each court

Duty of Care

Obligation people owe each other not to cause any unreasonable harm or risk of harm

Appeal in a Criminal Case

Only the defendant can appeal

Misappropriation of A Trade Secret

Owner of trade secret can bring a civil lawsuit against anyone who has misappropriated a trade secret through unlawful means

Plaintiff

Party who files a complaint

Dissenting Opinion

Reasons issued by a justice who does not agree with a decision

Merchant Courts

Solved commercial disputes based on trade practices and usage

Constitution

Supreme Law of Land

Who may issue executive orders?

The President of US and state governors

Entry of Judgment

The office decision of the court

Apellee

the responding party in an appeal

Defect in Design

A defect in design occurs when a product is designed incorrectly and could have reasonably been designed to be safer

Petition for Certiorari

A petition asking the Supreme Court to hear a case

Superseding or Intervening Event

An event for which defendant is not responsible

Berne Convention

An international copyright treaty that eliminated the need to use © or word copyright on a copyrighted work

Writ of Certiorari

An official notice that the Supreme Court will review a case

Provisional Application

Application that an inventor may file with the PTO to obtain 3 months to prepare a final patent application

Crashworthiness Doctrine

Automobile manufacturers have duty to design automobiles taking into account the possibility of a second collision Possibility of harm by the body striking something inside the vehicle in an accident

Closing Argument

Each attorney tried to summarize their arguments and point out weaknesses of the other side's case

Commerce Clause

Grants Congress the power to regulate commerce with foreign nations, among the several states, and with Indian tribes

Not patentable subject matter

Laws of Nature, Abstract Ideas, Occurring Substances, mathematical formulas, and scientific principles

Courts and Jurisdictions

Major Court Systems in the United States: Federal + State Court Systems State courts resolve more than 95% of the lawsuits brought in this country

Economic Espionage Act

Makes it a federal crime for any person To convert a trade secret to his or her benefit or for the benefit of others Performing the above, knowing or intending to cause injury, to the owner of the trade secret

Design Patent

Patent obtained for the ornamental non-functional design of an item Valid for 14 years

Treaties

The President, with the advice and consent of two-thirds of the Senate, may enter into treaties with foreign governments Treaties become part of the Supreme Law of Land

Intermediate Scrutiny Test

applied to classifications based on protected classes (ex: gender)

Trademark Dilution Revision Act

A dilution plaintiff does not need to show that it has suffered actual harm Enough to show there is a likelihood of dilution Fundamental requirements that the holder of the senior mark must prove: Mark is famous Use by the other party is commercial Use by another causes a likelihood of dilution

Unintentional Torts (Negligence)

A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions

Class Action Fairness Act (CAFA)

A federal statute that requires certain class action lawsuits to be brought in or transferred to federal courts

Patent

A grant by the federal government to the inventor of an invention for the exclusive right to use, sell, or license the invention for a limited amount of time Intended to provide incentive for inventors to make their inventions public Protect patented inventions from infringement Federal patent law is exclusive There are no state patent laws

Generic Name

A mark that has become a common term for a product line or type of service and therefore has lost its trademark protection Name becomes descriptive rather than distinctive

Gross Negligence

A person is liable for harm that is caused by his or her willful misconduct or reckless behavior Punitive damages may be assessed

Causation (Actual Cause)

A person who commits a negligent act is not liable unless actual cause can be proven

Proximate Cause (Legal Cause)

A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for consequences of his or her actions

Consolidation

Act of a court to combine two or more separate lawsuits into one lawsuit.

Appeal

Act of asking an appellate court to overturn a decision after the trial court's final judgment has been entered

Utility Patents

After Twenty years, the invention enters the public domain Patent term begins to run from the date the patent application is filed

Defend Trade Secrets Act

Allows an owner of a trade secret to bring a civil lawsuit in federal court against a defendant for the misappropriation of a trade secret The DTSA provides extensive remedies for the misappropriation of trade secrets

Supervening Event

Alteration or modification of a product by a party in the chain of distribution that absolves all prior sellers from strict liability Manufacturer or seller is not liable if a product is a materially altered or modified after it leaves the seller's possession, and the alteration or modification causes an injury

After it was discovered that Apple's software updates were intentionally causing their phones to slow down, which of the following did Apple NOT agree to do?

Apple agreed to stop slowing down phones

Rational Basis Test

Applied to classifications not involving a suspect or protected class (ex:age) Court will uphold government regulation so long as there is justifiable reason for it Permits much of the government regulation of business

Doctrine of Transferred Intent

Applies when a person acts with the intent to injure one person but actually injures another Law transfers perpetrator's intent from target to actual victim Victim can sue the perpetrator

Legislative Branch

Article 1 Part of the government that makes federal laws Congress: Senate and the House of Representatives

Executive Branch

Article II Part of the United States government that enforces the federal law President and the vice president

Judicial Branch

Article III Part of the United States government that interprets the law Supreme Court and other federal courts

Which of the following is an example of the Socratic method of teaching?

Asking students questions about a case or legal issue

Misappropriation of the Right to Publicity (Tort of Appropriation)

Attempt by another person to appropriate a living person's name or identity for commercial purposes Plaintiff's recourse: Recover the unauthorized profits made by the offender Obtain an injunction preventing further unauthorized use of his or her name or identity

To qualify for federal trademark protection, a mark must either

Be distinctive or A word or design that is unique Ex: Google, Exxon Have taken on a secondary meaning Occurs when public specifically identifies a product by its secondary meaning Ex: Holiday Inn, Vision Center

Law

Body of rules of action or conduct prescribed by controlling authority and having binding legal force. To be obeyed and followed by citizens, subject to sanctions or legal consequences

Checks and Balances

Built into the Constitution to ensure no one branch of the federal government becomes too powerful

Copy Registration

Can register copyrighted work with U.S. Copyright Office Registration Is permissive and voluntary May be completed at any time during the term of copyright Registration permits a holder to obtain statutory damages for copyright infringement Registration allows you to sue for copyright infringement

Fully Protected Speech

Cannot be regulated or prohibited by government Can be oral, written, or symbolic Example: Criticizing the President, buring the U.S. flag as protest

Limitations of Strict Liability

Casual sales by non-merchants, will not be subject to strict liability Strict Liability applies only to products and not services Dominant element in hybrid transactions dictates whether strict liability applies

Intentional Torts

Category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff's injuries

Enumerated Powers

Certain powers delegated to the federal government by the states

Defenses to Product Liability

Certain products are inherently dangerous and are known to the general population to be so Manufacturers and sellers are not strictly liable for failing to warn of generally known danger

______________ courts were allowed to give equitable remedies under the English Common Law

Chancery

Diversity of Citizenship

Citizens of different states or citizen of a state and a citizen of a foreign country. Dollar amount of controversy must exceed at least $75,000

Class Actions

Class actions occur when a group of plaintiffs with common claims collectively bring a lawsuit against a defendant.

The _______________ School of Jurisprudence believes that the law is a set of rules developed, communicated, and enforced by the ruling party rather than a reflection of the society's morality, history, logic, or sociology

Command

Foreign Commerce Clause

Commerce clause grants the federal government the authority to regulate foreign commerce Direct and indirect regulate by state or local governments that burdens foreign commerce violates the clause and is therefore unconstitutional

Interstate Commerce

Commerce that moves between states or that affects commerce between states Anything that "effects" commerce

Federal government has the power to regulate three types of commerce

Commerce with Native American tribes Foreign Commerce Interstate Commerce

English __ Law was developed by judges, who issued their opinions when deciding cases. The principles in these cases became precedent for later judges deciding similar cases.

Common

Choice-of-Law Clause

Contract provision that designates a certain state's or country's law: To be applied in any dispute concerning nonperformance of the contract

Forum-Selection Clause

Contract provision that designates to a certain court to hear any dispute concerning non performance of the contract

Production of Documents

Copies of all relevant documents obtained by a party to a lawsuit from another party on order of the court

Court Issues Summons

Court order that directs the defendant to appear and answer the complaint

Physical and Mental Examination

Court-ordered examination of a party where injuries are alleged that could be verified by examination

The ________ School of Jurisprudence proposes that legal rules are unnecessary and are used as an obstacle by the powerful to maintain the status quo

Critical Legal Studies

__________________ improves a person's problem-solving skills and helps him or her to make clear, logical, rational, and well-reasoned conclusions and judgments

Critical legal thinking

States generally permit jurisdiction over nonresidents in the following ways

D committed tort within state D entered into contract either in the state or affects the state D transacted other business in the state

Comparative negligence (available in the majority of states)

Damages are apportioned proportionally between the plaintiff and the defendant Proportionately based on the degree of fault of each party

Failure to Warn

Defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown Proper and conspicuous warning placed on the product insulates all in the chain of distribution Failure to warn is a defect that supports a strict liability action

Defect in Packaging

Defect that occurs when a product has been placed in packaging that is insufficiently tamperproof Containers should: Be tamperproof Clearly indicate when tampered with Defective packaging subjects all in the chain of distribution to strict liability

Res Ipsa Loquitur

Defendant has exclusive control of the situation that caused the plaintiff's injury Injury would not have ordinarily occurred but for someone's negligence

Statute of Limitations

Defendant is relieved of liability if action is not brought within the statute of limitation period

Actual Malice

Defendant made the false statement knowingly or with reckless disregard of its falsity

Government contractor defense

Defense and other contractors that manufacture products to government specifications are not usually liable if such a product causes injury

Assumption of Risk

Defense that a defendant can use against a plaintiff who knowingly and voluntarily participates in a risky activity that results in injury

English Common Law

Developed by judges who issues opinions when deciding cases Principles announced in cases became precedent for future judges deciding similar cases

Which of the following is NOT a component of critical thinking?

Discounting opposing positions and arguments

Preemption Doctirne

Doctrine that provides that federal law takes precedence over state or local law Congress may expressly provide that a federal statute exclusively regulates an area or activity Or local governments are given concurrent powers

Complaint

Document a plaintiff files with the court and serves on the defendant to initiate a lawsuit Names parties to the lawsuit Alleges facts and laws violated Adds a prayer for relief

Cross-Compliant

Document filed by the defendant against the plaintiff to seek damages or some other remedy

Open Statement

Each party's attorney makes a statement that summarize the main factual and legal issues

History of American Law

English system of law ("English Common Law") was adopted as a system of jurisprudence in early American colonies English Common Law is the foundation on which the American legal system is built

Which of the following statements is true about the early development of English common law?

Equitable orders and remedies of the Court of Chancery took precedence over the legal decisions and remedies of the law courts

Regulations and Orders Administrative Agencies

Established by legislative and executive branches of federal and state governments Adopt rules and regulations to interpret statutes Hear and decide disputes

Supremacy Clause

Establishes that the U.S. Constitution, federal treaties, laws, and regulations are the supreme law of the land

Statute of Limitation

Establishes the period during which a plaintiff must bring a lawsuit against a defendant. Statute of limitations begins to run at the time plaintiff first has the right to sue the defendant

Copyright Revision Act of 1976

Establishes the requirements for obtaining a copyright Protects copyrights works from infringement

Federal Patent Statute of 1953

Establishes the requirements for obtaining a patent and protects patented inventions from infringement

Which of the following is NOT a primary function of law in the United States?

Establishing uniform principles of individual morality

U.S. Patent and Trademark Office (PTO)

Evaluates patent application and grants more than 300,000 per year

Long-Arm Statute

Extends a state's jurisdiction to nonresidents who were not served summons within the state Long-Arm Statute must satisfy Due Process Concerns

Intentional Infliction of Emotional Distress (Tort Of Outrage)

Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another person

Settlement Conference

Facilitates the settlement of a case without trial (aka Pretrial Hearing) Informal conference held in judge's chamber Used to identify major trial issues and relevant factors when no settlement is reached

Laws that are enacted only after considerable study, debate, and public input are an example of which function of the law?

Facilitating Orderly Change

Failure to exercise duty of care includes

Failing to assembly a product carefully Negligent product design Negligent inspection or testing of a product Negligent packaging Failure to warn of the dangerous propensities of a product

Defamation of Character

False statement(s) made by one person about another

Disparagement

False statements made about a competitor's products, services, property, or business reputation

Libel

False statements that appear in media

The Securities and Exchange Commission is an example of a

Federal Administrative Agency

Federal Courts have exclusive jurisdiction to hear cases involving

Federal Crimes Antitrust Bankruptcy Patent and copyright issues Suits against the United States

Bill of Rights Protects from intrusive government action by:

Federal Government State Governments (Incorporation Doctrine)

Judicial Decisions

Federal and state courts issue judicial decisions Judicial decisions state the rationale used by the court in reaching that decision

Lanham (Trademark) Act

Federal law that protects the owner's investment and goodwill in a mark and prevents consumer confusion

Leahy-Smith America Invents Act

Federal statute that significantly amended federal patent law

Establishment Clause

First Amendment clause prohibiting the government from either establishing a state religion or promoting one religion over another

Free Exercise Clause

First Amendment clause prohibiting the government from either establishing a state religion or promoting one religion over another

Bill of Rights

First ten amendments to the U.S. Constitution Guarantees certain fundamental rights to natural persons

Marks that cannot be registered

Flag or coat of arms of the United States, any state, municipality, or foreign nation Geographical names standing alone Surnames standing alone Any mark that resembles a mark already registered with the federal PTO

Courts of Chancery (Equity Courts)

Formed to surpass limited remedies of law courts Equitable remedies shaped to fit each situation

Supreme Court of the United States

Hear appeals from Federal Circuit Courts of Appeals Federal District Courts Special Federal Courts Highest State Courts No new evidence or testimony is hard The Supreme Court's decision is final

Intermediate Appellate Courts

Hear appeals from trial courts Review trial court record to determine if: Errors of law have occurred during trial that require reversal or modification of decision No new testimony or evidence permitted Decisions are appealable to the state's highest court

General-Jurisdiction Trial Courts

Hear cases that are not within the jurisdiction of limited-jurisdiction trial courts Records and stores testimony and evidence in trials Some states have division as to Criminal cases Civil Cases Decisions are appealable to an intermediate appellate court or the state supreme court

Limited-Jurisdiction Trial Courts

Hear matters of specialized or limited nature Evidence can be introduced and testimony can be given Decision can be appealed to a general jurisdiction court or possibly an appellate court Small claims courts: Hear civil cases involving small dollar amounts

U.S. Court of Appeals for the Federal Circuit

Hears appeals from the Board of Patent Appeals and Interferences and federal court concerning patent issues

When legal scholars look to past legal decisions​ (precedent) to solve contemporary​ problems, it is an example of which school of​ jurisprudence?

Historical School

Abandonment of a Mark

If a holder of a mark fails to use or continue to use a mark in commerce, the holder could be at risk of abandonment Presumption of abandonment, if there is no use for 3 consecutive years

Motion for Judgment on the Pleadings

If all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit

Contributory negligence (available in a minority of jurisdictions)

If plaintiff contributed to her own harm, she cannot recover from the defendant even if the product was defective

Partial Comparative Negligence (Modified Comparative Negligence)

If plaintiff is less than 50 percent responsible for causing her own injuries, the plaintiff may recover damages under the doctrine of comparative negligence if plaintiff is 50% or more responsible for causing her injuries, than the doctrine of contributory negligence applies, and the plaintiff recover nothing

Other Product Defects

Inadequate testing of products Inadequate selection of component parts or materials Improper certification of the safety of a product

Concurring Opinion

Individual reasons issued by a justice who agrees with the outcome of a case but not the reasons offered by other justices

Copyright Term Extension Act of 1998

Individuals are granted copyright protection for their lifetime plus seventy years

Jury Instructions

Instructions judge gives to the jury to explain how law is to be applied in the case

False Imprisonment

Intentional confinement or restraint of another person without authority or justification and without that person's consent by: Physical Force Barriers Threats of Physical Harm False Arrest

Intentional Misrepresentation (Fraud)

Intentional defrauding of a person out of money, property, or something else of value

Executive Orders

Issued by the president and state governors. Power derived from express delegation from the legislative branch and implied from the United States Constitution and state constitution

Forum-Selection and Choice-of-Law Clauses

Issues that come up when parties from different states or countries have a legal dispute over Which jurisdiction's court will be used Which jurisdiction's law apply to a case

Which of the following is NOT true about the arrival of the information age?

It arrived after new laws were written that were unique and specific to this environment

Judgment Notwithstanding the Verdict

Judge may overturn jury's verdict if she/he finds bias or jury misconduct

Remittitur

Judge may reduce the amount of monetary damages awarded by the jury

Full Faith and Credit Clause

Judgment of a court of one state must give "full faith and credit" to the courts of another state

Quasi In Rem Jurisdiction

Jurisdiction that allows a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching the defendant's property located in another state

In Rem Jurisdiction

Jurisdiction to hear a case because of jurisdiction over the property of the lawsuit

Civil Case Verdict

Jury decides whether defendant is liable and assess damages

Criminal Case

Jury determines whether defendant is guilty or innocent. May assess penalties

Deliberation

Jury goes into the jury room to reach a verdict

Laws that make certain activities crimes are an example of which function of the law?

Keeping the peace

Functions of the Law

Keeping the peace Shaping moral standards Promoting social justice Maintaining the status quo Facilitating orderly change Facilitating planning Providing a basis for compromise Maximizing individual freedom

The ___________ School of Jurisprudence believes that promoting market efficiency should be the central goal of legal decision making

Law and Economics

Which of the following schools of jurisprudential thought might suggest that the federal government's policy of subsidized housing provides incentives resulting in too many homes being built?

Law and Economics

Ordinances

Law enacted by local government bodies Ordinances are codified

Sociological School

Law is a means of achieving and advancing certain sociological goals Purpose of law is to shape social behavior

Command School

Law is a set of rules developed, communicated, and enforced by the ruling party The law changes when the ruling class changes

Historical School

Law is an aggregate of social traditions and customs Changes in the norms of society will gradually be reflected in the law

Natural Law School

Law is based on what is "correct" Law should be based on morality and ethics

Analytical School

Law is shaped by logic Results are reached by applying principles of logic to specific facts of a case Emphasis is on the logic of result rather than on how the result is reaches

Which of the following are categories of courts that established English common law?

Law, Equity, and Merchant

Malicious Prosecution

Lawsuit in which the original defendant sues the original plaintiff for improperly filing a lawsuit

Venue

Lawsuits must be heard by the court in the nearby jurisdiction in which the incident occurred or where the parties reside Change of Venue: to avoid prejudice jurors based on pretrial publicity

Discovery

Legal process during which each party engages in various activities to discover facts of the case from the other party and witnesses prior to trial

Copyright

Legal right that gives the author of qualifying subject matter exclusive right to publish, produce, sell, license, and distribute the work

Critical Legal Studies School

Legal rules are unnecessary Used by the powerful to maintain status quo Legal disputes should be solved by applying arbitrary rules based on notions of what is fair

Professional Malpratice

Liability of a professional wo breaches his or her duty of ordinary care Also known as a breach of reasonable professional standard

Product Liability

Liability of manufacturers, sellers, and others for injuries caused by defective products Three main theories Negligence Misrepresentation Strict Liability

Strict Liability

Liability without fault Certain activities that can place the public at risk of injury even if reasonable care is taken Public should have some means of compensation if such injury occurs

Statute of Repose

Limits the seller's liability to a certain number of years from the date when the product was first sold

Liability without fault

Makes manufacturers, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, regardless of how careful they were

Registration of a Mark

Mark may be registered with PTO in Washington DC if it has been used in commerce Can be registered six months prior to use Right to register a mark is lost if not used in commerce within six months Mark may be opposed by third parties

Shoplifting and Merchant Protection Statutes

Merchants may stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if: There are reasonable grounds for suspicion Suspects are detained for only a reasonable time Investigations are conducted in reasonable manner

United States' law evolves and changes along with all the following EXCEPT

Misuses and oversights of our legal system

Highest State Court

Most states call it the state supreme court Hears appeals from intermediate appellate state courts and certain trial courts No new testimony or evidence is heard Decisions of state supreme courts are final, unless there is an error related to federal law, then it is appealable to the U.S. Supreme Court Death penalty cases involving U.S. Constitutional issues are often cases that are appealed to SCOTUS

Requirements for a Valid Copyright

Must be a tangible writing Writing is defined broadly and can include Books, lectures, slides, greeting cards, pictures, etc Must be affixed to a tangible (permanent) medium Must be original Cannot copy someone else's creative work and get a copyright

Patent Application

Must be filed with the PTO in Washington DC Must contain a written description of the invention PTO must make a decision whether to grant a patent within three years from the date of filing PTO can grant priority to patent applications for products, processes, or technologies

The ____________ School of Jurisprudence asserts that the law should be based on morality and ethics

Natural Law

Motion for Summary Judgment

No factual disputes to be decided by the jury and that the judge can apply the proper law to the undisputed facts and decide the case without a jury

Due Process Clause

No person shall be deprived of life, liberty, or property without due process of the law Fifth Amendment: Federal government action Fourteenth Amendment: State and local government action The government is not prohibited from taking a person's life, liberty, or property Must follow due process in order to do so

Failure to provide adequate instructions

Occurs when a manufacturer does not provide detailed directions for safe assembly and use of a product

Defect in Manufacture

Occurs when a manufacturer fails to: Assemble a product properly Test a product properly Check the quality of the product adequately

Copyright Infringement

Occurs when a party copies a substantial and material part of the plaintiff's copyrighted work without permission

Intentional Misrepresentation

Occurs when a seller or lesser Fraudulently misrepresented the quality of a product Conceals a defect in it Recovery is limited to persons who were injured because they relied on the misrepresentation

Negligence

Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do

Slander

Oral Defamation

Deposition

Oral testimony given by a deponent

Law enacted by local government bodies, such as cities and municipalities, counties, school districts, and water districts

Ordinance

Pleadings

Paperwork filed with the court to initiate and respond to a lawsuit

Electronic Commerce

Parties are permitted to obtain website domain names and conduct business electronically

Mediation

Parties choose a neutral third party to assist them Settlement is reached through intermediation Mediator can give opinions to either party Does not make judgment or issue award After discussing facts of the case with both side, the mediator encourages settlement of the dispute and transmits settlement offers to each party

Arbitration

Parties choose neutral third party to hear evidence and testimony and decide the dispute Common in commercial and labor disputes After an arbitration hearing is complete: Arbitrator makes a decision and issues an award Arbitration can be binding or nonbinding

Negotioation

Parties engage in discussions to try to reach a voluntary settlement May take place at any level of litigation Parties make offers and counteroffers to one another Settlement-agreement: voluntarily entered into by the parties to dispute on reaching an agreement

Arbitration Procedure

Party must give notice to the other party Parties then select an arbitration association or arbitrator, and agree on the date, time, and place of the arbitration After an arbitration hearing is complete, the arbitrator reaches a decision and issues an award

Doctrine of Stare Decisis

Past court decisions become precedent for deciding future cases Lower courts must follow precedent established by higher courts

Patent Infringement

Patent Infringement Plaintiff may recover Money damages equal to reasonable royalty rate Other damages caused by the infringement Order for destruction of infringing articles Injunction against infringer Treble damages if infringement was intentional

Prior Art

Patent may be denied if subject matter appeared in prior art, which can be a reference, description, or event in the past that shows the idea is not new

Requirements for obtaining a patent

Patentable subject matter Novel Useful Nonobvious

Fair Use Doctrine

Permits certain limited unauthorized use of copyrighted materials The following uses are protected: Quote for review, criticism, or scholarly work Use in a parody or satire Brief quotation in a news report Reproduction by a teacher or student of a small part of the work to illustrate a lesson Incidental reproduction of a work in a legislative or judicial proceeding

Injury to Plaintiff

Personal injury or damage to the plaintiff's property Damages cannot be recovered if the plaintiff suffered no injury Damages recoverable depend on the effect of the injury on the plaintiff's life or profession

Defendant's Case

Plaintiff bears the burden of proof Direct examination Cross-Examination Re-direct Examination

The Plaintiffs Case

Plaintiff bears the burden of proof Direct examination Cross-Examination Re-direct Examination

Police Power

Power that permits states and local governments to enact laws to protect or promote the public health, safety, morals and welfare

Reserved Powers

Powers not delegated to the federal government by the Constitution and reserved for the state governments

Parties who can recover for strict liability

Privity of contract between the plaintiff and the defendant is not required Doctrine applies even if the injured party had no contractual relations with the defendant Consumer who purchased the product and any user of the product Third party bystanders Entitled to the same protection as users

Litigation

Process of bringing, maintaining, and defending a lawsuit Pleadings Discovery Pretrial Motions Settlement Conference

Digital Millennium Copyright Act

Prohibits unauthorized access to copyrighted digital works by circumventing the wrapper

Law and Economics School

Promoting market efficiency should be the central concern of legal decision making

Intellectual Property

Property that is developed through an intellectual and creative process Falls into a category of property known as intangible rights

Federal Trademark Dilution Act of 1995

Protects famous marks from dilution, erosion, blurring, or tarnishing Use by other party is actionable if: It is commercial It causes dilution of distinctive quality of the mark

Good Samaritan Law

Protects medical professionals who stop and render emergency first aid Relieves them from liability for ordinary negligence No relief for gross negligence or intentional or reckless conduct Laypersons not trained in CPR not covered

Laws that allow for the settlement of cases prior to trial are an example of which function of the law?

Providing a basis for compromise

The Supreme Court in Fisher v. University of Texas at Austin held that

Race-conscious admissions is lawful under the equal protection clause

Abnormal misuse of a product

Relieves the manufacturer or seller of product liability if the plaintiff abnormally misused a product

Arbitration Clause

Requires disputes arising out of the contract to be submitted to arbitration

Substantive Due Process

Requires government statues, ordinance, regulations, or other laws to be clear on their face and not overly broad in scope Tested using a reasonable person's understanding of the law Laws failing the test are declared void for vagueness

Procedural Due Process

Requires the government to give a person proper notice and hearing of legal action before depriving that person of life, liberty, or property

Appellate Court Will

Reverse lower court decisions for errors of law Reverse finding of fact made by a jury or judge only when it is unsupported by any evidence

Intermediate Appellate Courts

Review the record of lower courts or administrative agency proceedings Determine if there has been any error of law that would warrant reversal or modification of decision Appeals are heard by a three-judge panel Petitioner can request an en banc review No new evidence or testimony is heard

Patent Trial and Appeal Board

Reviews adverse decisions by patent examiners and conducts other patent challenge proceedings

E-commerce can be used for

Sales of goods Licensing of Intellectual Property Sales of Services

Socratic Method

Series of Questions and Answers Give and Take Inquiry and debate between a professor and student

Written Memorandum

Sets forth reasons for the judgment

Trial

Seventh Amendment guarantees the right to a jury trial in cases in federal court Jury trial is held upon the request of either party

Dormant Commerce Clause

Situation in which the federal government has the Commerce Clause power to regulate an area of commerce but has chosen not to regulate that area of commerce State can enact laws to regulate that area of commerce with its police power

The ______________ School of jurisprudence asserts that the law is a means of achieving and advancing certain sociological goals

Sociological

Product Defects

Something wrong, inadequate, or improper in the manufacture, design, packaging, warning, or instructions about a product Injured party must first show that the product that caused the injury was somehow defective to recover for strict liability Injured party does not have to prove who caused the product to become defective

Unprotected Speech

Speech not protected by the First Amendment and may be forbidden totally Ex: Dangerous speech, child pornography, etc.

Offensive SPeech

Speech that is offensive to many members of society

Limited Protected Speech

Speech that the government may not prohibit but that is subject to time, place, and manner restrictions

Commercial Speech

Speech used by businesses, such as advertising

The doctrine of _____________ promotes uniformity of law within a jurisdiction, makes the court system more efficient, and makes the law more predictable for individuals and businesses

Stare Decisis

The Texas Natural Resources Code is an example of

State Statute

State Statutes

State legislatures enact state statutes

Unduly burden interstate commerce

States may enact laws as long as the laws do not burden interstate commerce

Written law enacted by the legislative branch of the federal and state governments that establishes certain course of conduct to which covered parties must adhere

Statute

Federal Arbitration Act

Statute that provides for the enforcement of most arbitration agreements

Service of Process

Summons being served on a defendant to obtain personal jurisdiction over him or her.

™

Symbol designating an owner's legal claim to an unregistered mark associated with a product

SM

Symbol designating an owner's legal claim to an unregistered mark associated with a service

®

Symbol designating marks registered with the U.S. Patent and Trademark Office

Reverse Engineering

Taking apart and examining a rival's product or re-creating a secret recipe Competitor who has reverse engineered a trade secret can use the trade secret but not the trademarked name used by the original creator

Strict Scrutiny Test

Test that is applied to determine constitutionality of classifications by the government based on: Suspect Class (ex: race) Fundamental Rights (ex: voting)

Reasonable Person Standard

Test used to determine whether a defendant owes a duty of care

Priority of Law in the United States

The U.S. Constitution and treaties take precedence over all other laws Federal statute take precedence over federal regulations Valid federal law takes precedence over conflicting state or local law State constitutions rank as the highest state law State statutes take precedence over state regulations Valid state law take precedence over local laws

Fairness

The U.S. legal system strives to be fair

The supreme law of the United States

The United States Constitution

Which of the following is NOT true about stare decisis?

The courts of one jurisdiction are bound by the precedents established by the courts of another jurisdiction

Elements of Negligence Lawsuit

The defendant owed a duty of care to the plaintiff The defendant breached the duty of care The plaintiff suffered injury The defendant's negligent act was the actual cause of the plaintiff's injury The defendant's negligent act was the proximate cause of the plaintiff's injuries

Trier of Fact

The jury in a jury trial; the judge when there is not a jury trial

Jurisprudence

The philosophy or science of law

Voir Dire

The process whereby the judge and attorneys ask prospective jurors questions to determine whether they would be biased in their decisions

Freedom of Speech

The right to engage in oral, written, and symbolic speech protected by the First Amendment

Assault

Threat of immediate harm or offensive contact Any action that arouses reasonable apprehension of imminent harm Actual physical contact is unnecessary

What was the main reason for the creation of law courts by William the Conqueror during the early development of the English common law?

To administer the law in a uniform manner

What was the main reason for the establishment of chancery courts during the development of English common law?

To eliminate unfair results and limited remedies of law courts

Attractive Nuisance Doctrine

Tort rule that imposes liability on a landowner to children who: Attracted to the landowner's property by an attractive nuisance are killed or injured on the property

Negligent Infliction of Emotional Distress

Tort that permits a person to recover for emotional distress caused by the defendant's negligent conduct

U.S. District Courts

Trial Courts of General Jurisdiction empowered: Impanel juries Receive evidence Hear testimony Decide cases

Limited Jurisdiction (Special Federal Courts)

U.S. Tax Court U.S. Court of Federal Claims U.S. Court of International Trade U.S. Bankruptcy Court U.S. Court of Appeals for the Armed Forces U.S. Court of Appeals for Veterans Claims

Flexibility

U.S. law evolves and changes along with the norms of society, technology and the growth and expansion of commerce in the U.S. and the world The U.S. Supreme Court case Brown v. Board of Education is an example of flexibility of the law

Battery

Unauthorized and harmful or offensive physical contact with another person that causes injury There can be direct and/or indirect physical contact between victim and perpetrator May accompany assault

Trademark Infringement

Unauthorized use of another's trademark Owner must prove that: Defendant infringed the plaintiff's mark by using it in an authorized manner Use is likely to cause confusion, mistake, or deception of the public on the origin of goods or services

Law Courts

Uniform system of law Relief available was monetary award for damages

IRAC Method

Used to examine a law case I: ISSUE R: RULE A: ANALYSIS C: CONCLUSION

E-Courts

Used to settle legal disputes via the internet

Invasion of the Right to Privacy

Violation of a person's right to live his or her life without being subjected to unwanted and undesired publicity Facts do not have to be untrue Placing a person in false light constitutes invasion of privacy

Negligence Per Se

Violation of statute or an ordinance constitutes the breach of the duty of care

Concurrent Jurisdiction

With Federal Courts to hear cases involving: Diversity of Citizenship Federal question over which federal courts do not have exclusive jurisdiction The defendant decides which court hears a concurrent jurisdiction case

Federal Statutes

Written laws that establish certain courses of conduct that covered parties must adhere to The U.S. Congress must find specific authority in the U.S. Constitution (such as commerce, tax, and spend clauses) to enact federal statutes

Interrogatories

Written questions submitted by one part to the other party of a lawsuit

When Both parties waive their right to Jury

trial occurs without a jury