MGMT 209 Exam 1 Swim, MGMT 209 Exam 2 Swim Fall 2019, MGMT 209 Exam 3 Key Terms, MGMT 209 Exam 4 Key Terms, MGMT 209 FINAL Key Terms

Elements of the Tort of Intentional Interference with Contractual Relations

1. Valid contract between 2 parties 2. A 3rd party, the defendant, must know of the contract 3. Defendant must induce one of two original parties to break original contract and damage other original party

Remedies against Copyright Infringers (registered 90 days before publication/infringement claim): Statutory Damages

1. Varies, normally between $750 and $30,000 2. Can be lowered to $300 for innocent violations 3. Can be raised to $150,000 for flagrant violations

Official Gazette

1. Weekly online publication by USPTO 2. Gives notice to the public that USPTO plans to register the mark 3. Also publishes the Registration Certificates once granted Published weekly by the USPTO, it announces trademark applications for objection purposes, provides information on newly issued patents, and lists patents for license or sale. The Gazette is regularly reviewed by legal counselor professional "watch services" for new matters that conflict with clients' marks or patents.

Provisional Patent Filing is temporary...

1. Will be abandoned if the inventor does not file non-provisionally within 12 months 2. Does not count in the 20 years

5 Factors for A Species to be Endangered or Threatened

1. present or threatened destruction, modification, or curtailment of its habitat or range; 2. overutilization for commercial, recreational, scientific, or educational purposes; 3. disease or predation; 4. inadequacy of existing regulatory mechanisms; and 5. other natural or manmade factors affecting its continued existence.

Defenses to Defamation

1. truth 2. privilege

Examples of Descriptive Marks

104 Key (computer keyboards have 104 keys), McDonald's

Copyright Act of 1976

17 U.S.C. Sections 101 et seq. Gives automatic right for works created after January 1, 1978 a law that recognizes the rights of an individual creator (in any medium) from the time he or she has created a work and that protects a creative work for the lifetime of that author plus 70 years

Youngstown Sheet & Tube Co. v. Sawyer

1952; example of the Supreme Court's check on the Executive Branch, President Truman issued an executive order for the Secretary of Commerce to seize the steel mills and keep them operating; SCOTUS ruled seizure was illegal because it was not within the constitutional powers of the President, forced to return control of the steel mills to their owners

Citizens United v. Federal Election Commission

A 2010 landmark Supreme Court case that ruled that individuals, corporations, and unions could donate unlimited amounts of money to groups that make independent political expenditures.

Acquiring Company

A company that seeks to acquire another firm.

Social Unionism

A concept in which unions look beyond immediate objectives and try to reform social conditions of the workers, not necessarily economic. Programs with regard to education, health, welfare, artistic, recreation, and citizenship are designed to attempt to satisfy needs of members' whole personalities. Attempts to integrate workers, trade unions, and the labor movement into broader coalitions for social and economic justice.

Condition Subsequent

A condition in a contract that operates to terminate a party's absolute promise to perform.

Original Court Jurisdiction

A court's power to hear and decide a case before any appellate review. A trial court must necessarily have original jurisdiction over the types of cases it hears.

Caveat Emptor

1. Latin term for "let the buyer beware" Means that the buyer or his representative should check the records for any problems and physically examine the property to make sure everything is okay.

Application of Strict Liability in Tort

1. Limited to "Abnormal" or "Ultra-hazardous" activities, but not so unreasonable as to be prohibited altogether 2. Expanded to food and drinks in the early 1900s 3. Today to manufacturers who sell defective products, some areas of Products Liability Ex: keeping wild animals, blasting with dynamite

What do Copyrights cover?

1. Literary works (fiction/nonfiction) 2. Prose and poetry 3. Musical works and lyrics 4. Dramatic works and the accompanying music 5. Choreographed works 6. Photographs 7. Paintings 8. Sculpture 9. Computer software 10. Maps 11. Architectural designs 12. Recordings 13. Motion Pictures 14. Radio or Television

Misrepresentation can occur through failure to speak if

Have knowledge of material facts AND aware that other party's decision would be affected by silence

Privately Held Corporations

A firm held under private ownership. May issue stock and have shareholders, but their shares do not trade on public exchanges and are not issued through an initial public offering (IPO).

Labor-Management Reporting and Disclosure Act

A law passed in 1959, also known as the Landrum-Griffin Act. Regulates how labor unions interact with their members and with businesses; mandated secret elections for unionization, oversight by the department of labor, and certain standards for union leadership, and included other regulatory and transparency provisions

Regulatory Capture

Agencies adopt perspective of the industry to be regulated 1. Result is that the targeted industry benefits from regulation 2. Acts in favor of industry, "Public Interest" is thus ignored

Equal Employment Opportunity Commission (EEOC)

Agency of the Department of Justice charged with enforcing Title VII of the Civil Rights Act of 1964 and other anti-discrimination laws a government agency with the power to investigate complaints of employment discrimination and the power to sue firms that practice it

Anticybersquatting Consumer Protection Act of 1999

Designed to stop individuals from registering famous trademarks as Internet domain names with the intent to then sell those names back to their rightful owners. Cybersquatting now a federal felony

Strict liability in torts is: A) Liability without fault B) Careless or reckless conduct C) Normally limited to abnormally dangerous activities D) All of the above E) A and C

E: A and C A) Liability without fault C) Normally limited to abnormally dangerous activities

For a patent to be protected in a foreign country an inventor/agent must

File patent in that particular foreign country, exception if patent falls under some international treaty or agreement

Certificate of Organization

Filed after the Articles of Organization are filed, attach it to the Articles of Organization, and return it to the organizers of the LLC. Once issued, the LLC's existence begins.

Certificate of Limited Partnership

Filed by partners in a Limited Partnership (LP) to create the LP, mandated by state statute. Shares are normally held by a small number of people that are personally known to each other or by one family, not traded in the public market, can be owned by as few as one shareholder. Generally operated like a sole proprietorship or partnership that utilizes the corporate form to take advantage of the limited liability of the corporate form. Transfer of shares is severely limited as set forth when created; limitations placed by the Articles of Incorporation. Still subject to double taxation.

Articles of Dissolution

Filed once the winding up process is over. Allows the state official to issue a Certificate of Dissolution with terminates the LLC

Declaratory Judgment Act

Filing for Patent Infringement 1) Patent should never have been granted 2) Patent has expired 3) Misuse of the patent 4) Fraud 5) Abandonment of Patent 6) Anti-trust violation

FDA

Food and Drug Administration. The agency that is responsible for determining if a food or drug is safe and effective enough to be sold to the public.

Rural Homestead

For a family, not more than 200 acres, which may be in one or more parcels, with the improvements thereon; or for a single, adult person, not otherwise entitled to a homestead, not more than 100 acres, which may be in one or more parcels, with the improvements thereon.

Statutory Law

Also known as legislative law; the U.S. Congress has extensive power to pass laws (statutes) that constrain business' behavior; formal procedures for adopting statutes are in Constitution, state legislatures and even municipal ruling bodies or other governmental entities can also pass statutory laws

Legislative Law

Also known as statutory law

Blue Laws

Also known as sumptuary laws, they are designed to restrict personal behavior in accord with a strict code of morality. Blue laws were passed across the colonies, particularly in Puritan New England and Quaker Pennsylvania.

Confidentiality Rules

Legal fact that Union Elections are Anonymous

Defense to Assault/Battery: Privilege

Legal immunity from liability (police)

Defenses

Legal justification for the action of the alleged tortfeasor

Interest harmed must be a...

Legally protected interest

Shopkeeper's Privilege

Merchant has the right to reasonably detain suspected thief on business premises for a reasonable amount of time

Brigham City v. Stuart

Officers have the right to enter a home with no warrant when they reasonably believe that an occupant is seriously injured or imminently threatened with a serious injury

Collateral

Property or assets that are committed by an individual in order to guarantee a loan. Upon default, it becomes subject to seizure by the lender and may be sold to satisfy the debt.

Defense to Defamation: Absolute Privilege

Public policy favors complete freedom of speech such as testifying in court

Defamation

Publication of a false statement that tends to injure a person's reputation or good name causing the public to hold that person up to hatred, contempt, or ridicule, or cause him/her to be shunned or avoided

University of Wisconsin v. Southworth

SC unanimously rejected the argument about Christian student funds going to organizations that speak out for gay rights saying that the first amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech

Rule 10b-5

SEC rule prohibiting fraud in relation to the sale of securities. prohibits the commission of fraud in connection with the purchase or sale of any security

Consumer Product Safety Commission (CPSC)

a federal agency established to protect the health and safety of consumers in and around their homes responsible for overseeing the safety of products such as toys, electronics, and household furniture

Army Corps of Engineers

a federal agency under the Department of Defense (DoD) that primarily oversees dams, canals and flood protection in the United States, as well as a wide range of public works throughout the world.

Federal Patent Statute of 1952

a federal statute that establishes the requirements for obtaining a patent and protects patented inventions from infringement

Compelling State Interest

a fundamental state purpose, which must be shown before the law can limit some freedoms or treat some groups of people differently

Voidable:

a term applied to a contract that one or both parties have the ability to either withdraw from or enforce That which is capable of being adjudged void, but is not void unless action is taken to make it so.

Unenforceable:

a term applied to a contract that, because of a law, cannot be enforced by the courts

Garnishee

a third party who holds money or property of a debtor that is subject to a garnishment action

"Attractive Nuisance" Doctrine

a tort rule that imposes liability on a landowner to children who have been attracted onto the landowner's property by an attractive nuisance and who are killed or injured on the property (e.g., pool, empty refrigerator)

Homestead

a tract of public land available for settlement

Agent

a wholesaler who represents buyers or sellers on a relatively permanent basis, performs only a few functions, and does not take title to goods a person who acts or does business for another

Williams Act of 1968

any prospective purchase of more than 5% of a company stock must file tender offer proposal with SEC.

Point Sources

release pollutants from discrete conveyances, such as a discharge pipe, and are regulated by federal and state agencies. The main point source dischargers are factories and sewage treatment plants, which release treated wastewater.

Coast Guard

responsible for marine safety standards for vessels and ports

EEOC v. Sambo's of Georgia, Inc. (1981)

restaurant did not have to fire a Sikh who didnt pass req or no facial hair, they wanted a clean cut image

Service Mark

same as trademark, only denotes service not product

McConnell v. Federal Election Commission

upheld a law prohibiting corporations and labor unions from running ads that mention candidates and their positions for 60 days before a federal general election

Ethical Compensation

victim was harmed, victim should be compensated

Administrative Warrants

warrants required for inspection of business in regulatory situations

Legislative Intent

what the lawmakers who passed a law wanted the law to mean. If the language of a statute is unclear, judges will often look at the legislative intent to help them interpret the law.

En Banc Decision

when the entire membership of the court hears and decides the case: "as one body" panel of 3 judges to decide case. Usually in court of appeal.

Friendly Offer

where the acquiring company has asked the target board of directors and they have agreed to endorse the takeover and recommend its acceptance by the shareholders

Unfriendly Offer

where the board of the target company refuses the bid from the acquiring company

Infringement

wrongful taking or using intellectual property without permission or compensation to the rightful owner

What are punitive damages awarded for?

"Gross Negligence" or "Willful and wanton" disregard for safety

Black's Law Dictionary definition

"Law is that which is laid down, ordained, or established. A rule or method according to which phenomena or actions coexist or follow each other. That which must be obeyed and followed by citizens, subject to sanctions or legal consequences, is a 'law'"

NLRA, Section 7 gives the employees the right to:

"engage in other concerted activities" for the purpose of "mutual aid or protection"

the duty to flee is no longer in Texas in a criminal case due to:

"Castle Doctrine" and "Stand your Ground" laws; Chapter 9 of the Texas Penal Code

Chaplinsky v. New Hampshire

(1942) The Court ruled that the first amendment did not protect "fighting words"

Jurisdiction

(n.) an area of authority or control; the right to administer justice The authority of a court to hear a case

United States v. Morrison

-Commerce decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution. (2000) The Court held that the power to regulate interstate commerce did not provide Congress with authority to enact the 1994 Violence Against Women Act, which provided a federal civil remedy for the victims of gender-motivated violence.

Allied Structural Steel v. Spannaus

-Supreme Court declared a state law to be unconstitutional under the Contracts Clause because the state regulation of private pension funds altered significantly the contractual obligations of employers under previously existing private, unregulated pension funds

Proving Copyright Infringement

-that the infringer had access to the copyrighted work -substantial similarity to the pirated work and the copyrighted work: expert witness, must show average person would see them as substantially similar

Statutory definition of Libel in the Civil Practice and Remedies Code, Chapter 73 includes tends to injure a living person's reputation exposing that person to

1. Public hatred 2. Contempt or ridicule 3. Financial injury 4. Impeach person's honesty, integrity, virtue, or reputation 5. publish the natural defects of anyone exposing them to the public hatred, ridicule, or financial injury

Texas Penal Code, Section 30.05

1. Purplish, lavender paint markings 2. Markings must be vertical, at least 8 inches long and 1 inch wide and be 35 feet above the ground 3. No more than 100 feet apart in timber and 1,000 feet apart in open range 4. Must be visible by those approaching the property

Fair Use Doctrine Four Prong Test

1. Purpose and character of fair use (e.g., non-profit, educational use) 2. Nature of copyrighted work 3. Percentage of total used 4. Effect on value of the copyrighted work

Registered trademarks are good for 10 years if

1. Registrant files all of the post registration documents to keep it 2. Can also be renewed for another 10 years, then another 10 years, etc.

Defenses to a claim of Trademark Infringement: Parody

1. Sometimes okay, sometimes not 1. First Amendment Rights

Business Disparagement Elements

1. The defendant published a false, defamatory statement of fact about the plaintiff 2. With malice 3. Without privilege 4. That resulted in special damages to the plaintiff which requires proof

A reasonable person would be in fear if

1. The person knows of the action 2. How else could they be in fear

Defenses to Trespass to Land

1. The trespass is warranted (necessary) to assist some in danger. 2. The trespasser is a licensee (such as a utility service person). 3. Trespasser enters to protect property

Slander of Title Elements in Texas

1. The uttering and publishing of disparaging words 2. That they were false and malicious 3. That the plaintiff sustained special damages thereby, and 4. That the plaintiff possessed an estate or interest in the property disparaged

Elements Necessary to Establish Strict Liability

1. There was a sale, identify in the seller; seller must be engaged in the business of selling that product, relationship between the product and the injury must be established 2. That the product was defective and defect was a substantial factor in Plaintiff's injuries 3. There was unreasonable danger 4. Product was defective when it left the manufacturer's control

"Current Use" Trademark Filing, registrant must prove

1. They have used the mark (date of first use, example of how it was used in commerce) 2. On all goods they will identify in the application 3. In commerce that is interstate, territorial (U.S. Territories), with a foreign country

"Intent to Use" Trademark Filing

1. To be used if product is not currently in commercial use 2. Must have a true intent to use the mark in the future 3. Requires additional fee and paperwork/form

Disparagement Essential Elements

1. Untrue statement about Plaintiff's product or property 2. Defendant knew statement was false 3. Statement made with malice 4. Special damages (loss of at least one customer)

Three Eras of Federal Regulatory Agencies: Historical

1887-1932, Mostly aimed at specific industries: 1. Railroads 2. Drug Companies 3. Securities

Van Orden v. Perry

A Ten Commandments monument erected on the grounds of the Texas State Capitol did not violate the Establishment Clause because the monument, when considered in context, conveyed a historic and social meaning rather than an intrusive religious endorsement.

Lawrence v. Texas

A Texas law classifying consensual, adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment.

Search Warrant

A court order allowing law enforcement officers to search a suspect's home or business and take specific items as evidence

Equal Pay Act

A federal employment law that prohibits sex-based compensation discrimination and mandates that men and women in the same workplace doing substantially equal jobs be given equal pay. The nature of the work (i.e., the skills, effort, responsibilities, and working conditions) rather than the job title determines whether the jobs will be considered substantially equal. Covers any form of compensation, including overtime pay, bonuses, profit sharing options, stock options, life insurance and health insurance benefits, travel reimbursements, and vacation and holiday pay.

Americans with Disabilities Act

A federal law enacted in 1990 that makes it illegal for employers with 15 or more employees to refuse to hire qualified people with disabilities if making "reasonable accommodations" would enable the person to carry out the duties of the job. Made it illegal to discriminate against a disabled person in terms of employment opportunities, access to transportation, public accommodations, communications, and government activities.

Quasi-Contract:

A fictional contract imposed on the parties by a court in the interests of fairness and justice; usually imposed to avoid the unjust enrichment of one party at the expense of another. An obligation or contract imposed by law (a court), in the absence of an agreement, to prevent the unjust enrichment of one party.

Closed-Ended Credit Transaction

A loan or type of credit where the funds are dispersed in full when the loan closes and must be paid back, including the interest and finance charges, by a specific date.

Outside Directors

A member of a company's board of directors who is not an employee or stakeholder in the company. Paid an annual retainer fee in the form of cash, benefits, and/or stock options. More likely to provide unbiased opinions, have less conflict of interest and may see the big picture differently than outsiders

Surety

A person obligated by a contract under which one person agrees to pay a debt or perform a duty if the other person who is bound to pay the debt or perform the duty fails to do so.

Forum Shopping

A plaintiff choosing a court in which to sue because he or she believes the court will rule in the plaintiff's favor. a practice whereby the plaintiff chooses a court in which to sue because he or she believes the court will rule in the plaintiff's favor

Executive Law

A rule issued by the president that has the force of law

Compulsory Licensing

A system allowing copyrighted works to be used without negotiation or consent in exchange for mandatory payment of a set license fee.

Worker's Lien

A type of lien that gives laborers a security interest in property until they have been paid for their work on that property.

All agencies are under the...

APA (Administrative Procedures Act)

Gilbert v. Petliette:

Acceptance "Acceptance must be identical with the offer in order to make a binding Contract"

What is the primary tool for regulation by Government?

Administrative Agencies

Schuette v. Coalition to Defend Affirmative Action

An amendment to Michigan's constitution that prohibits state universities from considering race as part of its admissions process does not violate the Constitution's Equal Protection Clause. Public institutions of higher education may not give preference in admission based on race, sex, color, ethnicity, or national origin.

Condition Concurrent

An event that must occur at the same time as another condition in a contract.

Texas v. Johnson

An individual burned an American flag in protest to Ronald Reagan's policies outside the convention hall in Dallas. The protestor was promptly arrested and charged with violating a Texas law that prohibited the burning of the American flag. Eventually, the case went to the U.S. Supreme Court which declared the Texas law unconstitutional as being too restrictive on the First Amendment right of freedom of speech

Nuisance

Any conduct that interferes with enjoyment or use of land, must be unreasonable interference

Appellant

Appealing Party

Negligence: Duty of Care (Duty)

Arises when a person foresees that conduct would create unreasonable risk of harm to others (e.g., Target shooting in rural vs. urban area)

Commerce Clause

Article 1, Section 8, Clause 3 of the Constitution, "The Congress shall have the power... to regulate Commerce with foreign Nations, and among the several States, and with Indian tribes"; liberally construed by the courts to allow Congress the power to regulate business, chief source of congressional power to regulate business; major limitation on states' abilities to regulate business activities

Elastic Clause

Article I, Section 8, of the Constitution, which allows Congress to make all laws that are "necessary and proper" to carry out the powers of the Constitution.

Expressed Authority:

Authority that arises from specific statements made by the principal (employer) to the agent (employee)

Implied Authority:

Authority that is not expressed or written into the contract, but which the agent is assumed to have in order to transact the business of insurance for the principal.

Which of the following forms of intellectual property are protected only under state law or common law? A) Trademarks B) Trade names C) Copyright D) Patents E) A and B

B: Trade names

Intent

Based on the intentional invasion of a protected interest; mean to do the act, not necessarily the harm

Wagner Act of 1935, Section 1

Because of the "inequality of bargaining power" between employees and employers it was the "policy of the United States" to encourage employee collective action and bargaining.

Market Failure

Breakdown or failure in the general free market economic system.

Notable countries that do not follow bilateral treaties or the Berne Convention

China, Eastern Europe, Sometimes the country just allows it to happen

National Resources Defense Council

Citizen Group. An influential lobbying and litigating group on environmental issues.

Commercial Speech

Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court.

Employment-At-Will

Contract of employment that can be terminated by either the employer or employee at any time and for any reason. Seen in the 19th/early 30th century with the "free market"/ laissez-faire climate of the U.S. economy.

Chapter 4

Contracts and Agency Law

Chapter 10

Corporate Governance

Double Taxation

Corporation is taxed, as well as any income that is dispersed to the owners of the corporation (i.e., the shareholders)

Externalities

Cost or benefit incurred or received by a third party that the third party has no control over the creation of that cost or benefit

Roman v. Roman:

Elements of a Contract Texas State Law still requires Consideration in Contracts for them to be valid and enforceable, despite it's omission from the official list description

Chapter 12

Employment Regulation

Slander of Quality

False statement about the quality of property, sometimes called trade libel

Articles of Organization

Filed with the proper state official to create an LLC. Must contain the following: (1) the name of the LLC, (2) the period of duration which can be perpetual, (3) the purpose of the LLC which can be for all lawful business purposes, (4) the address and name of the registered agent, (5) if the LLC is to have managers a statement to that effect and the names and addresses of the managers or if the LLC will not have managers a statement that there will be no managers and the names and addresses of the initial members (owners), (6) names and addresses of each organizer of an LLC. Called Articles of Formation in Texas and is filed with the Secretary of State in Texas.

Patent office examiner will research the invention and either

Grant or deny patent

Possessory Lien

Grants a creditor the right to remain in possession of a property under the lien until the debtor has satisfied his or her debt.

Must defend Patent

If you do not defend, patent is basically worthless

Conversion

Illegal, wrongful taking of the property of another that places the property in the service of the trespasser

Public Use

In eminent domain, requirement of actual physical use by the condemning agency to justify condemnation.

Bill of Rights

In the First Congress, James Madison introduced 12 amendments, 10 were ratified in the next few years. First 10 guarantee personal rights and freedoms as well as state's rights

Intentional Interference with Contractual Relations Damages

Include punitive damages, may have a second party to sue that has more money

Executive Order

Independent method to create law by the President

Voir Dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

When the industry has the greatest interest in regulation, citizens or the public loses out

Lack of funds, apathy leads to: 1. Free-riders, citizens just going along with the flow 2. Small expected benefit of citizens who do take interest

Real Property

Land or anything permanently attached to the land

Sunday Laws

Laws governing the type of transactions that can be performed on a Sunday (repayment of money, until next business day, etc.); blue laws

District Court

Lowest level of fed. courts, where fed. cases begin & trials are held (bank robbery, environmental violations, tax evasion) federal court where trials are held and lawsuits are begun

Department of the Interior

Manages and protects the nations public lands and natural resources

Why are courts reluctant to utilize the intentional infliction of mental distress tort?

Mental damages are hard to measure, may lead to fraud

Appellee

Non-appealing party

Temporary Nuisance

Ongoing nuisance that continues to be a nuisance from time to time

Partnership

Owner becomes one of several owners, makes the management of the partnership a joint operation. Can technically operate with no formalities, good practice is to have a very detailed written partnership agreement specifying the relationship of the partners to each other prior to entering into the partnership; agreement should enumerate partnership duties, responsibilities, profit division, duration of the partnership, and any other vital information necessary to operation. Partners have unlimited liability; each partner is liable for all of the partnership's debts. Least favorite of the three major historical forms of business entities.

Establishment Clause

Part of the First Amendment stating that "Congress shall make no law respecting an establishment of religion."

General Partners

Partner in a Limited Partnership (LP). Has unlimited responsibility, responsible for the debts and obligations of the limited partnership whether they incurred the debts or obligation just like a partnership in a regular partnership. Have a fiduciary duty to the LP and to the limited partner.

Limited Partners

Partner in a Limited Partnership (LP). Only an investor, prohibited from taking part in the management of the LP (e.g., not allowed the right of access to the LP books). Only liable for limited partnership debts and obligations up to the amount of their investment (like a shareholder in a corporation); if a limited partner involves themselves in the management of the LP then they become a general partner and have unlimited joint and severable liability. Upon dissolution of the LP, the limited partner is normally paid after the creditors and before the general partners.

Personal Property Exemption

Personal property up to $1,000, including furniture, arts and electronics, is exempt. Exclusive property (current wages, alimony, child support, etc) and general property (home furishing, etc). Can claim up to $60,000 for family and $30,000 for single. Jewelry up to 25% of limit.

Intentional Infliction of Mental Distress usually requires manifestation of

Physical harm

Purpose of Trademarks and Service Marks

Prevent customer confusion

Federal Trade Commission (FTC)

Prevent unfair or deceptive advertising, created during the Historical Era (i.e., 1914) An agency that regulates a variety of business practices and curbs false advertising, misleading pricing, and deceptive packaging and labeling

New State Ice Co. v. Leiberman

Prevents state legislatures from arbitrarily creating restrictions on new businesses only on the claim that its market affects a public use; Oklahoma wanted ice making to be public utility and subject to state regulation

Answer

Procedurally, a defendant's response to the plaintiff's complaint.

Intellectual Property

Property created from ideas or thought process of the creator

Reichert v. State ex rel McCulloch

Quoted Caperton stating due process requires judge recusal when probability of actual bias is too high Supreme Court of Montana said due process requires recusal when the probability of actual bias on the part of the judge or decision make is too high, aka judge should step down when there is a probability of actual bias

Cybersquatting

Registering someone else's trademark or a famous person's name as an Internet domain name in: 1. Bad Faith 2. Hoping to make a profit by selling trademark use on the Internet back to its rightful owner

Strict Liability is covered by the:

Restatement of Torts 402A 1. Legal treatsie(?) 2. Texas has adopted

Nebraska Press Associate v. Stewart

SCOTUS stated that there was a heavy presumption against the constitutionality of prior restraint

Corporation

Separate legal entity and is created by state statute, which means its taxed separately. Any income that is dispersed to the owners of the corporation, the shareholders, is also taxed (i.e., double taxation). Owners have limited liability to the extent of their investment and only to the extent of their investment, much easier to raise capital.

Detrimental Reliance

Situation in which the offeree acts, based on a reasonable promise made by the offeror, and would be injured if the offeror's promise is not enforced.

Examples of Generic Marks

Smartphone, email, bread

"Reasonable Duty"

Some jurisdictions, by statute, are replacing common law rule with a "reasonable duty" rule that varies depending on the status of the parties. In other words, the owner would have a duty to warn in certain circumstances

If mark registration is not allowed or fails under Lanham, can earn trademark through:

State common law or statute

Marbury v. Madison

Supreme Court assumed the power of judicial review, not given by the Constitution but doesn't prohibit them either

Example of Conversion

Taking a new car for a test drive and failing to return the car

Misappropriation

Taking or stealing a secret and using it without the owner's permission Does not include: 1. Competitor developing the same "secret" on his own 2. Even when utilize reverse engineering, takes your product and goes backwards to find secrets and understand the product

Texas Express Warranty: Statutory Law

Texas Business and Commerce Code, Section 2.313, specifically recognizes express warranty in material manner made by seller that is the basis of the bargain 1. Affirmation of fact or promise 2. Any description 3. Any sample or model

Usury

The act of lending money at an interest rate that is considered unreasonably high or that is higher than the rate permitted by law

Judicial Law

The body of law created as a result of court (judicial) decisions

Target Company

The company that has been chosen as attractive for takeover/merger/acquisition option by a potential acquirer.

Disaffirmance

The legal avoidance, or setting aside, of a contractual obligation.

Owner implicitly establishes that person is a trespasser

Thief (closed door, locked window)

Anti-Federalists

Those who opposed the proposed Constitution, headed by Thomas Jefferson; took too much power from the states, worried the national government would have too much power through taxation, due to the Supreme Court's ability to invalidate state laws, President too much power by being commander-in-chief of the military. Biggest fear was that the national government would deprive citizens of civil liberties

Federalists

Those who supported the Constitution

What is the main way to enforce products liability?

Through the courts, common law

Reverse

To annul or make void a court ruling on account of some error or irregularity.

Affirm

To declare that a court ruling is valid and must stand.

Generic Trademark

Too common, rarely can be trademarked Trademark that uses Words in Common Use, and therefore is typically not granted a Trademark a brand name that comes to represent the category rather than a specific product or service

Palsgraf v. Long Island Railroad

Tort: Negligence Element: Duty of Care There must be a direct foreseeable link between the negligent act and the damage. Injury caused to a party of sufficient distance in an unforeseeable manner does not attract a duty of care. Background: Man tried to board train with fireworks, RR attendants attempted to help him onto trail, but the package was dropped and the fireworks exploded, causing Palsgraf to be injured. Palsgraf sued RR for negligence I: Foreseeability, negligence R: Must suggest causation - foreseeability A: RR hadn't been negligent toward her because her injury was not foreseeable C: Palsgraf's complaint was dismissed

Soweco, Inc. v. Shell Oil Co. (1980)

Trademark & Service Mark Generic Trademark Applications are held to be Invalid as a general rule, as they are too difficult for a Court to articulate and apply

USPTO database for Trademark search

Trademark Electronic Search System (TESS)

NAAQS

Two types:

Negligence

Unintentional but careless or reckless conduct; the failure to exercise due care when there is a foreseeable risk of harm to others. Standard is Reasonable Person Test Four basic elements: 1. Duty 2. Breach 3. Causation 4. Harm

Legal Remedies

Usually involve the payment of money

Mandatory Subjects

Wages, hours, and other conditions of employment; mandated by Section 8(d) for good faith bargaining. Classification has been interpreted rather broadly.

Request of Admissions

a written set of facts that one party requests the other to admit as being true

Falsehood can be

actual knowledge that it is false, state that something as a fact when should've known better (reckless statement)

Public Nuisance

affects the public at large

Grutter v. Bollinger

affirmative action case (lost) ; race could be used as a factor in admissions as long as there was no point system and race was not a major factor; upheld Bakke case Allowed the use of race as a general factor in law school admissions at University of Michigan

Endangered Species Act

aims to prevent the extinction of those invertebrates, vertebrates, and plants listed as threatened or endangered. It is administered by the National Oceanic and Atmospheric Administration (NOAA), which includes the National Marine Fisheries Service (NMFS), and Fish and Wildlife Service (FWA). NOAA handles marine species, and the FWS has responsibility over freshwater fish and all other species. Both agencies jointly manage covered species that are found in both habitats.

AQCR

air quality control region. Area can be an attainment air (clean air area) or nonattainment area (dirty air area). If nonattainment area, states must have a SIP to clean the air.

Inherent Powers Clause

aka Implied Powers Clause aka Necessary and Proper, aka Elastic Clause. Expands enumerated power to cover all contingencies, does not add new enumerated powers.

Superfund

allows EPA to clean up contaminated sites. It also forces the parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work.

Noise Control Act

an act to control the emission of noise detrimental to the human environment, and for other purposes. It provides for federal programs, identification of major noise sources, information on control technology, noise emission standards, control and abatement of aircraft noise, enforcement, citizen suits, and the like.

Texas recognizes express warranty by

case law & statute

Insider Trading Sanctions Act of 1984

civil and criminal penalties for insider trading by anyone with inside information

Suspect Classification

classifications of people based on their race or ethnicity; laws so classifying people are subject to "strict scrutiny"

Preemptive Power

congress can exclude state legislation when it chooses to act exclusively in a concurrent area. If a state attempts to pass laws in a preempted area, then there is a conflict with the supremacy clause

Mitchell v. Helms

court case where federal government money was being used to buy computer equipment for all schools (public, private, parochial)-court said it was constitutional because it was aid to the students

Kardon v. National Gypsum Co.

court interpret Rule 10b-5 as allowing of civil liability and private actions for damages as opposed to prohibition.

Nuisance Remedies

damages and injunction

Sarbanes-Oxley Act of 2002

established requirements for proper financial record keeping for public companies and penalties of as much as 25 years in prison for noncompliance

Clean Water Act

establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1972.

Due Process

fair treatment through the normal judicial system, especially as a citizen's entitlement.

Farley v. Skinner

fill in later Can still get loss of amenity if enjoyment and pleasure are only part of the purpose of the contract, not the whole purpose (flight path houses)

Zatarain's, Inc. v. Oak Grove Smokehouse, Inc.

fill in later Length and manner of use Factors contributing to secondary meaning in trademarks.

Tidelands Automobile Club v. Walters

fill in later rare Texas victory of intentional infliction of mental distress

Resource Conservation and Recovery Act

gives the Environmental Protection Agency ("EPA") the power to control hazardous waste, from the beginning of a process to the end, when it is disposed of. This means that the EPA has a hand in the transportation, storage, and disposal of hazardous waste products. The RCRA also provides guidelines insofar as managing non-hazardous solid wastes. There are three main objectives of the Resource Conservation and Recovery Act. Those objectives are: 1)To protect the health of the environment, and the humans that live in it; 2) To reduce or eliminate the generation of hazardous waste; 3) To conserve energy and natural resources

Implied by Fact Contract:

implied from the conduct of the parties; differs from express in that the conduct of the parties, rather than their words, creates and defies the terms of the contract; ex: sit in barber's chaira contract that is implied from the conduct of the parties. for example, when one takes a seat in the barber chair it is ____ that he or she is bargaining for a haircut... inferred from the conduct of the parties, they don't discuss terms. All the facts are there to imply a contract.

Implied by Law Contract:

in quasi contracts, a contract is not enforced until a judge fills in the blanks and implies the contract. Also called a Quasi-contract. Little success rate in court.

Mobile Source

includes any air pollution emitted by motor vehicles, airplanes, locomotives, and other engines and equipment that can be moved from one location to another.

Real Property Exemption

includes homestead and personal property exemptions

Nuclear Regulatory Commission (NRC)

independent, federal regulatory agency responsible for licensing and regulating civilian uses of nuclear energy. NRC supervises the building and operation of nuclear reactors and other facilities which utilize nuclear materials. NRC is responsible for ensuring that civilian uses of nuclear facilities and materials abide by public health and safety laws, national security laws, environmental quality laws, and antitrust laws.

Hearsay

information received from other people that one cannot adequately substantiate; rumor.

Self Dealing:

occurs when managers take advantage of their position to further their own private interests rather than those of the firm

Promisee:

person to whom the promise or action is given in exchange for the other person's promise or action

Promisor:

person who gives the promise or action in exchange for the promise or action of another

Wetlands

places where land and water meet which may be inundated or saturated by water for a few weeks of the year to shallow water year round.

Toxic

poisonous

Comprehensive Environmental Response, Compensation, and Liability Act

provides a Federal "Superfund" to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Through CERCLA, EPA was given power to seek out those parties responsible for any release and assure their cooperation in the cleanup.

Federal Insecticide, Fungicide, and Rodenticide Act

provides for federal regulation of pesticide distribution, sale, and use. All pesticides distributed or sold in the United States must be registered (licensed) by EPA. Before EPA may register a pesticide under FIFRA, the applicant must show, among other things, that using the pesticide according to specifications "will not generally cause unreasonable adverse effects on the environment.''

Social Insurance

party in the best position to spread the loss of injury should pay

Artisan

A skilled craftsperson

Injunction

An example of an action in equity or an equitable remedy

First Unions in the U.S.

Railroads

Employees Excluded Under Wagner Act, Section 2

--Employees in the "domestic service of any family or person at his home" (e.g., maids, butlers, etc.) --Any "individual employed by his parent or spouse" --All "agricultural laborers" --"Supervisors" --"Independent contractors"

Appeasement accomplished in two ways

1. Compensation to victim 2. The satisfaction that defendant had to pay

Three ways business involvement in tort:

1. Due to actions of business or its employees 2. Due to business actions against another business 3. Due to business products

Three Major Types of Business Entities

1. Sole Proprietorship 2. Partnership 3. Corporation

Contractor's Lien

A claim made against a property by a professional who has supplied labor or materials for work on that property, designed to protect professionals from the risk of not being paid for services rendered.

Financial Institution

A company engaged in the business of dealing with financial and monetary transactions such as deposits, loans, investments, and currency exchange. Encompass a broad range of business operations within the financial services sector including banks, trust companies, insurance companies, brokerage firms, and investment dealers.

Consumer Lease

A contract in the form of a lease or bailment for the use of personal property by a natural person for a period of time exceeding four months, and for a total contractual obligation not exceeding $25,000, primarily for personal, family, or household purposes, whether or not the lessee has the option to purchase or otherwise become the owner of the property at the expiration of the lease, except that such term shall not include any credit sale as defined. Does not include a lease for agricultural, business, or commercial purposes, or to a government or governmental agency or instrumentality, or to an organization.

Exempt Property

A debtor's holdings and possessions that, by law, cannot be attached by a creditor to satisfy their debt.

Artisan's Lien

A type of lien that permits an artisan to retain possession of a piece of work until it has been paid for. Also known as Mechanics lien.

Cosigner

Adding an additional signature to that of the principals to verify the authenticity of the principal's signature, sharing the liability for payment of a promissory note or other obligation by adding one's signature to such note or obligation.

Chapter 1

Introduction to Law and Sources of Law

Judicially Passive

Judge follows legislative intent

Magna Carta of the American Labor Movement

Wagner Act of 1935

Punitive Damages

designed to punish the defendant and deter him and others from engaging in similar behavior in the future

Illinois v. Rodriguez

(apparent authority doctrine): if consent to search is given by someone who does not have the authority to do so, but the police reasonably believed they did, the evidence is still admissible in court

Duress:

(n.) compulsion by threat; forcible confinement

Metropolitan Life Insurance Co. v. Ward

-Equal protections clause -Alabama tax law didn't meet the equal protection clause because it taxed non-residents more than it taxed residents -No legitimate government interest Alabama tax law that taxed non-resident corporation more than local companies -Court held distinction was not a legitimate governmental purpose

Compulsory Licensing Royalties determined by licensing organizations

1. ASCAP (the American Society of Composer, Authors and Publishers) 2. BMI (Broadcast Music Incorporated)

Defenses to a claim of Trademark Infringement

1. Fair Use- trademark is used in good faith for the primary meaning, not the secondary meaning (e.g., Zatarain's "fish fry" v. "Fish-Fri" allowed in fish batter) 2. Parody

Trademark Law Revision Act

1. Business owner's right to treble damages in false comparative advertising situations (codification of most state's law, only available to businesses - not individuals); can seek 3x damages 2. Ability to register trademark ahead of use, "intent to use" filing

Counteroffer

An offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer.

Unreasonable Adverse Effects on the Environment

''(1) any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or (2) a human dietary risk from residues that result from a use of a pesticide in or on any food inconsistent with the standard under section 408 of the Federal Food, Drug, and Cosmetic Act.''

Reynolds v. United States

(1879) The Court upheld the federal law that prohibited polygamy even though Reynolds, a Mormon from Utah, claimed it limited his religious freedom Banned Polygamy. Distinguished between religious beliefs that are protected by the free exercise clause and religious practices that may be restricted. Ruled that religious practices cannot make an act legal that would otherwise be illegal.

Federal Question

A question that has to do with the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

Heart of Atlanta Motel v. United States

(1964) Places of public accomodation had no "right" to select guests as they saw fit, free from governmental regulation because of the Commerce Clause.

Hopwood v. Texas

(1996) Supreme Court case in which 2 white students sued University of Texas School of Law because they were allegedly denied admission because of the school's affirmative action program; challenged the Bakke decision; use of race even as a means of achieving diversity on college campuses "undercuts the 14th Amendment"

Printz v. United States

(1997) the Court found that Congress lacks the authority to compel state officers to execute federal laws, specifically relating to background checks on handgun purchasers.

Gonzales v. Raich

(2005) The regulation (ban on homegrown medical marajuana) is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat (Wickard) or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

Hutchinson v. Proxmire (1979)

- Senator William Proxmire created the "Golden Fleece Award." - The award was not a flattering one. The award was given to federal agencies who, in Proxmire's mind, were funding things that were a waste of tax dollars - Senator Proxmire gave the award to an agency funding Ronald Hutchinson, a behavioral scientist. - On the Senate floor, Proxmire called Hutchinson's research "nonsense" among other things - Proxmire also shared his thoughts through press releases to his district - Hutchinson sues Proxmire for libel - The Court affirmed the decision of the lower court and held that Proxmire's statements in his newsletters and press releases were not protected by the Speech and Debate Clause - Statements on the floor of the senate do fall under absolute privilege, but the press releases Proxmire sent out do not qualify - However, in upholding this ruling, the Court also found that Proxmire's statements were not made with "actual malice" and thus, were not libelous

SEC v. W.J. Howey Co.

- created Howey test (what defines a Security) 1. Investment of money 2. Common enterprise (undivided interest in part of all of the company, not just one aspect of the company) 3. Expectation of Profits to be generated primarily by someone other than the investor.

Four Types of Federal Bureaucratic Agencies

1. Executive Agencies (Dependent Agencies) 2. Independent Executive Agencies 3. Independent Regulatory Agencies 4. Government Corporations

Sonny Bono Copyright Term Extension Act of 1998

-extended the US copyright terms by 20 years -brought the US copyright term in line with European copyright terms -had an amendment attached to it called the Fairness in Music Licensing Act

Interference with Prospective Economic Advantage

-not universal (TX does NOT recognize and sees it as advertising) -stealing customers during negotiations: must have intentional interference and must be in an unreasonable and improper manner

14th Amendment

1) Citizenship for African Americans, 2) Repeal of 3/5 Compromise, 3) Denial of former confederate officials from holding national or state office, 4) Repudiate (reject) confederate debts

Essential Elements of Defamation

1) FALSE Statements (don't have to know it's false, UNLESS it's against a public figure) 2) Statement must be published/broadcast to 3rd party 3) Harm suffered by victim

Types of Invasion of Privacy

1) Use of a person's name or picture without permission 2) Intrusion into the person's solitude 3) Public disclosure about a person which is offensive and objectionable 4) Publication of information which places a person in a false light

Historical Aspect of Product Safety Law: Very early 1900s and before

1. "Caveat emptor" or "let the buyer beware" 2. If purchased a product and it hurt you, you should not have purchased that product 3. No products liability 4. Burden was totally on the consumer, purchaser, and user of the product 5. Began to change in the early 1900s due to: Spanish American War and The Jungle by Upton Sinclair

Two forms of Trademark Filing

1. "Current use" filing 2. "Intent to use"

Non-Defenses to Trespass

1. "I thought I could..." 2. Go on property and improve property

Texas Common law fraud elements

1. A material representation, falsehood or untruth with the intent to deceive, was made 2. The representation was false 3. When the representation was made, the speaker knew it was false or made it recklessly without any knowledge of its truth 4. The speaker made the representation with the intent that it should be acted upon by the party 5. The party acted in reliance under the representation, and 6. The party thereby suffered injury

Elements of Trespass to Land

1. A person who does not have permission to go on the land 2. Enters the land (onto, above, below the surface of the land) 3. Causes anything to go onto, over, or under the land or 4. Remains on the land after being told to leave

Interfering with Employment Elements

1. A valid contract with another party existed 2. That the defendant knew about the contract 3. that the defendant interfered with the contract causing damage to the plaintiff

Non-Provisional Patent Application must include:

1. A written document of description and claims 2. Drawings (sometimes) 3. Oath or Declaration by inventor stating he is the rightful owner of material 4. Fees for filing, search an examination (change every October, fee schedule provided by USPTO)

Strict Liability Defenses

1. Abuse or misuse of the product when abuse or misuse is a proximate cause of injury, also called product abuse 2. Assumption of the Risk A) Warnings given for foreseeable injury and injured party knowingly disregards B) No duty to warn for obvious dangers C) No duty to warn if it is a commonly known danger in the industry 3. Comparative Negligence can be a defense 4. Expiration of the statute of limitations

Negligence: Causation, Cause in Fact

1. Actual case 2. "but for" test 3. Alone does not give rise to negligence, must also be the proximate cause of the harm ex: dominoes

What is not covered by Copyright?

1. Actual news events 2. Historical information 3. Scientific information 4. Ideas 5. Processes 6. Inventions 7. Compilations of factual information 8. Trademarks

History of Structure of Regulatory Agencies

1. Agencies had little guidance on structure 2. Each was allowed to establish its own procedures and structures 3. Led to great deal of litigation 4. Administrative Procedures Act (APA) 1947 passed to make more uniform. Defines procedural rules and formalities for all federal agencies, rule book for administrative agencies

Regulatory Agencies Formal Rulemaking

1. Agency identifies need for rule or regulation 2. Proposal rules are promulgated 3. "Notice of Proposed "Rule-Making" is published in the Federal Register and must include hearing dates, time, place, nature of the proceedings, description of the issues and subjects involved; must give a minimum of 30 days notice prior to the proceedings but can be longer 4. Formal trial-like hearing: record made of oral evidence/testimony, can introduce exhibits, can call expert witnesses subject to cross-examination, interested party can delay with long drawn out hearings (some have taken over 10 years but rare) 5. Final Draft published and can become effect no sooner than 30 days

Regulatory Agencies Informal Rulemaking

1. Agency identifies need for rule or regulation (e.g., public demand, Congressional mandate, industry request) 2. Agency promulgates draft of the rule 3. Gives notice as required by APA to public by printing in the Federal Register (daily government publication), includes legal authority of rule, terms of proposed regulation or a description of the issues and subjects involved 4. Pulblic can send in written comments for usually 30 days called "notice and comment"; agency can then revise the rule or completely ignore the comments 5. Final draft published in Federal Register and takes effect in 30 days

Factors Giving Rise to Secondary Meaning

1. Amount and manner of advertising 2. Volume of sales 3. Length and manner of use

Factors for a product to obtain "Secondary Meaning"

1. Amount and manner of advertising 2. Volume of sales 3. Length and manner of use (Zatarain's, 1983)

Cross-Action

1. An action brought by a defendant in a lawsuit against another named defendant based upon a cause of action arising out of the same transaction on which the plaintiff's suit is based. 2. An independent action brought by a defendant in a lawsuit against the plaintiff. a separate and independent lawsuit brought by the defendant against a plaintiff for some reason arising from the same transaction or event that is the basis for the plaintiff's lawsuit.

Trade Secrets

1. Anything the business wants to keep secret from their competitors 2. Information owned by the company by which the company gains a competitive advantage

If Patent Office Examiner Rejects Patent:

1. Applicant receives notice with details of why denied 2. Applicant must request reconsideration (in writing, amend his application to correct problems listed in denial) 3. If still rejected, can appeal to the Board of Patent Appeals and Interferences in the USPTO 4. If still rejected (after appeal), can appeal to the court of Appeals for the Federal District and/or sue the Director in the United States District Court for the District of Columbia

Trade Names

1. Apply to a part or all of business name (good will and good name of the business) 2. A specialized form of trademark 3. Cannot be registered under Lanham (unless is name of product) 4. Otherwise will be State Law (has to be earned, must be unique or fanciful) 5. If not the actual name of the business: A) Must identify the business name to the public B) Usually required to file with local authority assumed name certificate C) Stops the business from hiding behind its Trade Name 6. Business must defend its Trade Name on its own if cannot register under Lanham

Four types of potential marks for trademark registration under Lanham Act

1. Arbitrary or fanciful 2. Suggestive 3. Descriptive 4. Generic

Independent Executive Agencies

1. Are independent of a cabinet, not directly under a cabinet position 2. Still under Presidential control, hence Executive 3. Usually set up this way for political reasons 4. Examples: NASA, EPA

Implied Warranty

1. Arises out of the facts and situations of the case, not expressed by the parties 2. A warranty that the law derives by implication or inference from the nature of the transaction or the relative situation or circumstances of the parties. 3. Henningsen v. Bloomfield Motors

Defenses to Negligence

1. Assumption of Risk 2. Contributory Negligence 3. Comparative Negligence 4. Superseding Cause

Purpose of the requirement of special damages or special injuries in malicious prosecution

1. Assure good faith litigants access to the judicial system without fear of intimidation by a countersuit for malicious prosecution 2. Prevents frivolous lawsuits

Baxter v. Ford Motor Company

1. Baxter bought a Ford in 1930 2. Case was about claim by Ford of a non-shatterable glass called Triplex which was not supposed to break, fly, shatter 3. It did and Baxter lost left eye and had injuries to his right eye 4. Court held manufacturer is responsible for their material statements that are false if: A) Someone relies on them B) Acted on the material statement by buying the product C) Injured by the product 5. Did not require privity

Trademark Areas: Colors examples

1. Brown in transportation and delivery belongs to UPS 2. Tiffany's blue on bag and cases 3. Red lacquered soles on women's shoes, Christian Louboutin, 2012

How Trademark Protection is lost?

1. Failing to renew properly to keep the registration current 2. Abandoned by the owner for three years

Provisional Patent Filing

1. Came about in 1995 2. Gives inventor an option an option of lower cost first patent filing in the United States, also gives the U.S. inventors parity with foreign applicants 3. Filing is simpler, no oath nor declaration 4. Temporary (will be abandoned if the inventor does not file non-provisionally within 12 months, does not count in the 20 years)

Advantages of copyright registration

1. Can only sue infringers if the copyright is registered 2. Registration establishes a public record of the copyright claim 3. If registered for 5 years, it serves as prima facie evidence of ownership 4. Can have an impact on damages 5. Can give international protection

Superseding Cause

1. Casual connection is broken by intervening act or cause 2. An intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability. ex: Dominoes- someone knocks over a domino closer to end before the one meant to hit it has a chance to fall

Negligence: Causation, Proximate Cause

1. Consequences must bear a reasonable relationship to the negligent conduct 2. Harm must be foreseeable 3. Palsgraf v. Long Island Railroad Co. led to state modifications A) Texas - defendant must have known or should have known harm would result B) California and other states say defendant must be a substantial factor in bringing about the harm

Why have Strict Liability?

1. Consumers ought to be given maximum possible protection from dangerous defects in products 2. Only the producer can prevent dangerous and defective products and strict liability rule forces them to cure defects 3. Simplifies inevitable result in court if use negligence and/or warranty theory 4. Manufacturers receive benefit from sale of products and should be responsible for the burdens as well 5. "Social Insurance" Theory: Manufacturer is better equipped than consumer to pay for damages since manufacturer can pass it on to the consumer

Types of Intellectual Property

1. Copyrights 2. Patents 3. Trademarks and service marks 4. Trade Names 5. Trade secrets

Why were administrative agencies created?

1. Country shifting from agrarian to an industrial economy, business relations grew more complicated 2. Congress could not cover everything; did pass laws, court to enforce laws, but what of routine matters? 3. Result, Congress delegated activities to administrative agencies

Economy-Wide Regulatory Agencies

1. Cover more than one industry 2. Not usually a victim of Regulatory Capture 3. Has the greatest impact on the overall legal environment of business 4. FTC, NLRB, EPA, CPSC, EEOC, OSHA

Independent Agencies

1. Created by Congress 2. Boards and Commissions; members are appointed by President, advice and consent of Congress 3. Appointed for terms 4. Members can only be removed for cause 5. Supposed to be non-political; restrictions on make-up, usually cannot be overly dominated by one political party (bare majority only) 6. Congress controls the money and so controls the agency

USPTO (United States Patent and Trademark Office)

1. Created in 1802 2. 6,500 employees 3. Determines if deserve patent or no 4. Patents are applied for at the USPTO (can be done by paper mailing, but prefer electronic filing)

Post Registration Documents for Trademark

1. Declaration of Use form must be filed between the 5th and 6th year after registration 2. Declaration of Use and Application for Renewal must be filed between the 9th and 10th year and every 10 years thereafter

Administrative Procedures Act

1. Defines procedural rules and formalities for all federal agencies, rule book for administrative agencies 1946 Act requiring bureaucratic agencies to appeal to the affected parties before adopting new policies. Legislative check on Bureaucracy. federal legislation that places limitations on how agencies are run and contains very specific guidelines on rule making by agencies

Enabling Statute

1. Defines purpose of agency 2. Empowers the agency to create rules and regulations 3. Often power is stated in broad terms 4. Gives great flexibility to the agency

Texas Express Warranty: Case Law

1. Does not require privity, Nobility Homes 1977 2. Can be by sample, Indust-Ri-Chem 1980

Three Eras of Federal Regulatory Agencies: New Deal

1. During Franklin D. Roosevelt's Administration 2. Used to get country out of the Great Depression 3. Many types of agencies

Negligence Four Basic Elements

1. Duty 2. Breach 3. Causation 4. Harm

Elements of Negligence in Products Liability

1. Duty of care: duty owed to all persons within foreseeable zone of danger (buyer, buyer's household, innocent bystanders); must prove product is defective 2. Breach of Duty of Care: based on reasonableness 3. Causation: Actual cause (Cause in fact, "But for" test); proximate cause (foreseeable) 4. Defense to Negligence Suits: Plaintiff has burden of proof, defendant has to prove affirmative defense (assumption of risk, contributory/comparative negligence, intervening causation)

Picking an Appropriate Form of Business Entity Depends on Several Factors, such as:

1. Ease of Operation (set up costs and difficulty of operation) 2. Desired length of existence of the business 3. Personal liability 4. Taxation 5. Ease of Sale of Business 6. Ease of raising capital

Regulatory Agencies created by and received power from enabling statutes from Congress

1. Enabling statute sets agencies': A) Regulatory mission B) Organizational structure C) Enforcement powers 2. Enabling statutes are normally very broad, details are left to agency 3. Congress has oversight as do the Courts

Explosion of Economy Wide Regulatory Agencies in Socially Conscious Era

1. Environmental Protection Agency (EPA) 2. Consumer Product Safety Commission (CPSC) 3. Equal Employment Opportunity Commission (EEOC) 4. Occupational Safety and Health Administration (OSHA)

Regulatory Agencies Informal vs. Formal Rulemaking

1. Formal procedures are required for substantive rules 2. Informal is OK for procedural rules or interpretive rules, called regulations 3. Formal rulemaking is mandated by APA; in the interest of society to develop a record of the proceeding, can also be used when it is expected to generate information that the agency could not otherwise obtain 4. Property interests that are at stake can also determine the level of procedural due process 5. Agencies sometimes try to hide substantive rules as interpretive or procedural to avoid formal rulemaking process

Texas Rules on Negligence Theory in Product Liability

1. General rule is that one who manufactures or supplies a product has a duty of reasonable care to users, and to those in the foreseeable zone of danger of such a use, to prevent physical harm that he should reasonably foresee could result from the use of the product for its intended purpose. The obligation of such a manufacturer or supplier is to exercise reasonable care to discover the dangerous propensities of the product and to warn those whom he would expect to use it (Starr, 1965) 2. Privity is not required 3. Manufacturer is liable to those they should have expected could be harmed by the product (product must be used lawfully and for the intended purpose) 4. Has negligence defenses, except assumption of the risk

Conversion: Non Defenses

1. Good intentions 2. Buying stolen goods 3. Mistake

When filing Trademark with USPTO, an Attorney can:

1. Help determine if you even need to register the trademark 2. Process is not as bad as patents but can still be complicated 3. Help you identify the mark 4. Help what goods it will apply to 5. Help with the paperwork to register the mark

Three Eras of Federal Regulatory Agencies

1. Historical 2. New Deal 3. Socially Conscious

Industry Specific Regulatory Agencies

1. ICC: created to regulate Railroads 2. SEC: created to regulate Securities Industry 3. FCC: created to regulate Communication Industry

Comparative Negligence

1. If both parties are negligent, compare negligence 2. Assign percentages of negligence to the parties 3. Damages are reduced by percentage of party's own negligence 4. Some states say if more than 50% negligent, no recovery 5. Majority rule (including Texas) A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence.

Contributory Negligence

1. If both parties are negligent, no recovery 2. Any degree of negligence is sufficient, does not take into consideration how much negligence 3. Last Clear Chance Doctrine 4. Absolute- any negligence, no recovery 5. Minority view A legal defense that may be raised when the defendant feels that the conduct of the plaintiff somehow contributed to any injuries or damages that were sustained by the plaintiff.

Once Mark is Registered must give notice

1. If registered under Lanham, give notice with "®", cannot use it during the registration process or if lose trademark 2. If simply claiming the mark use: "™" for trademark, "℠" for service mark

Certain Marks Cannot be Registered Under Lanham

1. Immoral, deceptive or scandalous matter: matter than disparages or falsely suggests a connection with person, living or dead, or institutions, beliefs, or national symbols or bring them into contempt or disrepute 2. Flag or coat of arms or any other insignia of the U.S. States, municipalities, foreign nation, or any simulation thereof 3. Name, portrait, or signature of a living person without the written consent of the person or the name, signature, or portrait of a deceased President of the United States during the life of his widow without her permission 4. Any mark that is so like another's mark as to cause confusion or mistake or deceive the other's mark 5. Consists of a mark that is purely descriptive or deceptively misdescriptive, primarily geographic in descriptive, unless give indications of regional origin or is primarily, merely a surname

How do administrative agencies exert a major influence on government?

1. Implementation of laws 2. Enforcement of laws

Texas recognizes two implied warranties in products liability, both arising out of the Texas version of the U.C.C., in the Texas Business and Commerce Code

1. Implied warranty of merchantability 2. Implied warranty of fitness for particular purpose

After application is submitted, any competition can then object to the proposed trademark

1. Information becomes public at filing, filed in the USPTO official search records 2. Representation of the proposed mark will be filed in the Official Gazette (OG) (weekly online publication by USPTO, gives notice to the public that USPTO plans to register the mark) 3. Any party that opposes has thirty days to object

Remedies against Copyright Infringers (NOT registered 90 days before publication/infringement claim)

1. Injunctions 2. Impounding all the pirated copies 3. Actual damages

Remedies against Copyright Infringers (registered 90 days before publication/infringement claim)

1. Injunctions 2. Impounding all the pirated copies 3. Cost and attorney's fees 4. Actual or statutory damages

New Deal Constitutional Challenge

1. Involved the National Industrial Recovery Act (NIRA), a key piece of New Deal Plan A) Designed to stabilize falling prices and deter cut-throat competition B) Used legislative powers delegated from Congress C) Schechter Poultry Corp. v. United States (1935): Ruled the delegation of legislative power to be unconstitutional, the constitutionality of administrative agencies in question 2. Roosevelt's Response, Disgusted with the Supreme Court A) Called for Court to follow the will of the people (had won re-election in 1936 by 10,000,000 votes) B) Called for the reorganization of the Supreme Court but Roosevelt's Court Reorganization Bill failed in Senate 70-20 C) Conservative Justices started voting for the New Deal; "Switch in Time Saved Nine", Roosevelt was winning 3. Yakus v. United States (1944): Confirmed the delegation of legislative powers was constitutional, therefore Administrative Agencies held to be constitutional

MacPherson v. Buick

1. MacPherson purchased a 1909 Buick 2. Wooden spoke wheel collapsed 3. MacPherson was injured 4. Buick claimed no liability owned (MacPherson did not buy car directly from Buick but through a dealer, Buick had bought the wheel from another manufacturer) 5. Court held that Buick was liable, products liability based on negligence began

Fraud is a false promise to do an act, when the false promise is

1. Material 2. Made with the intent of not fulfilling it 3. Made to a person for the purpose of inducing that person to enter into a contract 4. Relied on by that person in entering into that contract

Trademark: "Secondary Meaning"

1. Means that the mark becomes the representation of the product 2. Words with an ordinary, primary meaning of their own may long use come to be known as that product to the public

Remedies to Patent Infringement

1. Monetary damages equal to the lost royalties (equal to the lost royalties, any other damages caused by the infringement) 2. Equitable (injunction, court order to infringer to destroy all of the infringing articles)

Conversion Damages

1. Monetary to force tortfeasor to pay for the property 2. Equitable to force tortfeasor to return the property

How to earn a trademark if not registered under Lanham?

1. Most states have registration systems, not required 2. Common law: needs to obtain a secondary meaning (e.g., Girouard, 1993)

Hennigsen v. Bloomfield Motors (Implied Warranty)

1. Mr. Hennigsen purchased a 1955 Plymouth 2. 10 days later Mrs. Hennigsen was driving, heard a loud noise as if something cracked, steering wheel spun in her hands, car veered sharply into a brick wall and sign causing her injuries 3. Car was so damaged, could not find proof of a defect 4. Court held there was an implied warranty of merchantability 5. Meaning that Hennigsen could expect car to be reasonably suitable for use 6. Did not require privity

Trade Secrets State Law

1. Must be original 2. Must be secret (Industrial espionage, need for employment contracts)

Trademark Areas: Sounds examples

1. NBC: three note chime 2. MGM: roar of the lion 3. But not Harley-Davidson engine sound

Conversion Defenses

1. Necessity 2. Purported owner does not in fact own the property or does not have a right to possess it that is superior to the right of the holder

Manufacturer of a finished product is liable to purchase if:

1. Negligently put product on the market 2. In a defective condition 3. Without inspection 4. Knowing the purchaser would not make an inspection 5. It reached the consumer in the same condition it left manufacturer 6. Causing harm to the consumer (MacPherson v. Buick)

Libel in the Civil Practice and Remedies Code, Chapter 73 adds statutory defenses for

1. Newspapers 2. Broadcasters

Patent Registration can be done in two ways:

1. Non-Provisional 2. Provisional

Uniform Trade Secrets Act of 1979

1. Not very helpful 2. 40 states and District of Columbia have adopted parts of it 3. Basically still must use common law to enforce and is still difficult 4. drafted in 1979 by a special commission in an attempt to set nationwide standards for trade secret legislation; although the majority of states have adopted the act, most revised it, resulting in a wide disparity among states in regard to trade secret legislation and enforcement 5. Includes Theft, bribery, misrepresentation, breach or inducement of a breach to maintain secrecy or espionage through electronic or other means in its definition of improper means of learning of a trade secret

Seller's Talk

1. Opinion rather than telling falsehood 2. Only involves subjective terms

Executive Agencies (Dependent Agencies)

1. Part of the executive branch, usually created by Executive Order 2. Enabling legislation still comes from Congress and gives power to Executive Agencies 3. Usually called Departments or Administrations but can have other names as well such as Division (e.g., Department of Labor, subdivisions such as the Wage and Hour Division) 4. Normally one person is in charge, appointed by the President and normally confirmed by the Senate 5. President can hire and fire the head; therefore, Executive Agencies are under the direct control of the President

Two types of intentional torts

1. Personal 2. Property

Malicious Prosecution elements require higher degree of proof in Texas and must be

1. Positive 2. Clear 3. Satisfactory

Organizational Structure of Regulatory Agencies

1. Power comes from Congress - delegated 2. Enabling Statute creates agency and defines its purpose and gives power to agency 3. Structure or hierarchy can vary 4. Little difference between Independent Agencies and Executive Agencies

Examples of Interference with Prospective Economic Advantage

1. Predatory behavior 2. Go into business simply to drive competitor out of business, then raise prices (monopoly)

Patent applies to any new and useful:

1. Process: a process, act or method, primarily includes industrial or technical processes 2. Manufacture: Articles that are made, and includes all manufactured articles 3. Composition of Matter: Relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds 4. Machine 5. Includes basically everything made by man and processes for making products

Examples of the major influence on government by administration agencies:

1. Product safety regulations 2. Pollution control standards 3. Information for disclosure for the sale of securities 4. Workplace safety 5. Labor organizing activities 6. Employer hiring and promotion practices 7. Antitrust

Damages for Misappropriation

1. Profits that pirated material made 2. Injunction 3. Possible criminal sanctions (e.g., Espionage Act of 1996) 4. May can get restitution through the criminal courts

Copyright gives the author the immediate and exclusive right to

1. Reproduce the copyrighted work 2. Create derivative works based on it 3. To distribute copies 4. Perform the work 5. Display the work in public

Rights of Copyright Holder

1. Reproduce work 2. Change work 3. Perform or not perform work 4. Basically do anything they want to with the work including doing nothing with the work -- Right to copy the work -- Right to Divisibility of the work - each version or derivative -- work can have a separate copyright and only the copyright holder can sue for infringement. -- Right to Publicly perform the work -- Right to Publicly display the work -- Right to Publicly distribute the work -- Right to transmit a sound/video work through digital means

Implied Warranty of Merchantability (Bus. & Com. C. Section 2.314)

1. Seller must be a merchant with respect to that type of goods 2. Goods to be merchantable must: A) Pass without objection in the trade B) Be of fair average quality C) Fit for the ordinary purposes intended to be used D) Be of even kind, quality and quantity E) Adequately packaged as required F)Conform to the promises on the label, if any 3. Implied warranty of merchantability is not exclusive, also used in Texas Common Law (Nobility Homes, 1977) A warranty that goods being sold or leased are reasonably fit for the ordinary purpose for which they are sold or leased, are properly packaged and labeled, and are of fair quality. The warranty automatically arises in every sale or lease of goods made by a merchant who deals in goods of the kind sold or leased.

Implied Warranty of Fitness for Particular Purpose

1. Seller must be aware at the time of the sale of buyer's specific needs 2. Warrant that its product will do so 3. However, product will not do as warranted A warranty that goods sold or leased are fit for the particular purpose for which the buyer or lessee will use the goods.

Legislative (Rule-Making) Powers of Regulatory Agencies

1. Simply carrying out the action necessary to achieve Congressional intent from the enabling statute, have force of Congressional statutes 2. Must follow the APA and give interested parties the opportunity to be heard, may require public hearings depending on whether it is formal or informal rule

Remedies against Copyright Infringers (NOT registered 90 days before publication/infringement claim): DO NOT GET

1. Statutory damages 2. Attorney's fees and costs (Usually the two highest amounts of damages)

Rationale for Strict Liability

1. Strict liability requires compensation by the manufacturer for consumers' injuries due to defective product even if manufacturer exercised all reasonable care in design and manufacture of product

Effect of the Restatement (Third) of Torts on Product Liability

1. Suggests doing away with any distinctions between negligence, warranty or strict liability 2. Instead wants to replace with liability rules based on the type of defect or problem with one term products liability based on design, manufacturing, inadequate instruction on warnings 3. Only time will tell what the effect of these proposed changes will be, Texas does not seem to be accepting of these new changes

Owner expressly establishes that person is a trespasser

1. Tell a guest to leave and they will not leave 2. Post "No Trespassing" signs 3. Texas Penal Code, Section 30.05

Texas Elements to Invasion of Privacy

1. The defendant intentionally intruded on the Plaintiff's solitude, seclusion or private affairs and 2. The intrusion would be highly offensive to a reasonable person

Points to remember about Invasion of Privacy

1. Unwarranted does not mean unwanted 2. Public records render information public 3. Public figures lose much, but not all of their right of privacy

Patent Infringement occurs when another person/business :

1. Use 2. Make or copy 3. Offer to sell or does sell and patented material 4. Without owner's consent 5. In the United States or U.S. Territories

Negligence: Failure to Exercise Care (Breach)

1. Uses reasonable person test 2. Type of activity dictates required degree of care 3. Higher standard of care required if have or claim to have special knowledge or skill; standard is what would a reasonable person in that profession have done (e.g., doctors, lawyers, etc.)

Defenses to a claim of Trademark Infringement: Fair Use

1. Usually found in the descriptive type of trademarks 2. Trademark is used in good faith for the primary meaning, not the secondary meaning (e.g., Zatarain's "fish fry" v. "Fish-Fri" allowed in fish batter)

Negligence: Injury or Harm (Harm)

1. Usually requires physical harm 2. May be enough to only have mental harm in limited, proper situations

McCulloch v. Maryland

1819, Chief justice john marshall limits of the US constitution and of the authority of the federal and state govts. one side was opposed to establishment of a national bank and challenged the authority of federal govt to establish one. supreme court ruled that power of federal govt was supreme that of the states and the states couldn't interfere

Gibbons v. Ogden

1824; Supreme Court determined that the Commerce Clause allowed Congress to legislate with respect to all "commerce which concerns more states than one"; involved an attempt by the state of New York to grant monopolistic steamboat rights on the Hudson River between NY and NJ. Gave Congress immense power but power in Commerce Clause scarcely utilized until it passed the Interstate Commerce Act in 1887 and Sherman Antitrust Act of 1890

Schechter Poultry Corp v. United States

1935, Congress cannot delegate legislative power over industry codes to the President; the constitutionality of administrative agencies in question US Supreme Court invalidated the compulsory-code system on the grounds that the NIRA improperly delegated legislative powers to the executive and that the provisions of the poultry code did not constitute a regulation of interstate commerce

NLRB v. Jones & Laughlin Steel Corp

1937; Supreme Court restated the Gibbons position on interstate commerce; held that Congress could regulate labor relations at any manufacturing plant where a work stoppage "would have a most serious effect upon interstate commerce"

Valentine v. Chrestensen

1942- Commercial speech is NOT protected under 1st amendment. Christensen distributed printed handbills in the streets promoting his exhibit of a WWI submarine. not allowed to distribute commercial or business advertising

Brown v. Board of Education

1954 - The Supreme Court overruled Plessy v. Ferguson, declared that racially segregated facilities are inherently unequal and ordered all public schools desegregated.

Three Eras of Federal Regulatory Agencies: Socially Conscious

1960s-1970s, more aimed at activities across several industries: 1. Pollution control 2. Workplace safety 3. Product safety 4. Hiring and firing practices in employment

Boomer v. Atlantic Cement Co.

1967, NY. Atlantic makes cement in a Town. Spent 40 million to create modern cement plant. Plant discharges large amount of dust. Surrounding land owners who were there before the plant was built sued because it was a nuisance. Awarded to plaintiff but rejected injunction. Main issue- yes, neighborhood is right, but value of plant outweighed the consequences of the injunction. Ruling for plaintiff, even if it protects legal right, would do great harm. Judgement for plaintiff, 185,000, no injunction.

Consumer Credit Protection Act (CCPA)

1968, Federal legislation that created disclosure requirements that must be followed by consumer lenders (e.g., banks, credit card companies, auto-leasing firms); consumer lenders are required to inform customers about annual percentage rates, special or previously hidden loan terms and the total potential costs to the borrower.

Truth in Lending Act (TILA)

1968, federal law enacted to help protect consumers in their dealings with lenders and creditors. Requires that all terms in a consumer credit transaction be fully explained, designed to reduce confusion among consumers resulting from the different methods of computing interest.

Fair Credit Reporting Act (FCRA)

1970, federal law that regulates the collection of consumers' credit information and access to their credit reports; passed to address the fairness, accuracy and privacy of the personal information contained in the files of the credit reporting agencies. Governs how credit bureaus can collect and share information about individual consumers.

Fair Credit Billing Act (FCBA)

1974, federal law designed to protect customers from unfair credit billing practices

Equal Credit Opportunity Act (ECOA)

1974, regulation created by the U.S. government that aims to give all legal individuals an equal opportunity to apply for loans from financial institutions and other loan granting organizations

Toxic Substances Control Act

1976 provides EPA with authority to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures. Certain substances are generally excluded from TSCA, including, among others, food, drugs, cosmetics and pesticides.

Consumer Leasing Act

1976, Federal law that lists specific requirements for companies that lease personal property to customers for their personal use.

Electronic Funds Transfer Act (EFTA)

1978, federal law that protects consumers when they transfer funds electronically; provides a way to correct transaction errors and limits the liability resulting from a lost or stolen card. Also known as Regulation E.

When was the United States Court of Appeals for the Federal Circuit in Washington DC created (hears patent appeals)

1982

Immigration and Naturalization Service v. Chadha

1983, illustrates the functioning of the doctrine of separation of powers

Oil Pollution Act

1990 streamlined and strengthened EPA's ability to prevent and respond to catastrophic oil spills. A trust fund financed by a tax on oil is available to clean up spills when the responsible party is incapable or unwilling to do so. The OPA requires oil storage facilities and vessels to submit to the Federal government plans detailing how they will respond to large discharges. EPA has published regulations for aboveground storage facilities; the Coast Guard has done so for oil tankers. The OPA also requires the development of Area Contingency Plans to prepare and plan for oil spill response on a regional scale. It was passed as an amendment to the Clean Water Act of 1972 following the Exxon Valdez oil spill of 1989.

United States v. Lopez

1995 - The Commerce Clause of the Constitution does not give Congress the power to prohibit mere possession of a gun near a school, because gun possession by itself is not an economic activity that affects interstate commerce even indirectly.

Credit Repair Organizations Act (CROA)

1996, requires companies offering credit repair services to advertise and communicate honestly with consumers. Meant to protect consumers from companies that charge consumers money and falsely promise to get negative but accurate items removed from their credit reports, or to dramatically improve low credit scores that are based on correct information.

Texas Statute of Limitations on Permanent Nuisance

2-year period begins when nuisance is discovered

Texas Statute of Limitations on Temporary Nuisance

2-year period reoccurs every time there is a new violation

Bankruptcy Abuse Prevention and Consumer Protection Act

2005, revised the U.S. Bankruptcy Code. Filing for Chapter 7 personal bankruptcy became more difficult as more stringent guidelines and eligibility requirements were defined; goal was to prevent the bankruptcy process from being abused and to encourage Chapter 13 filings instead of the more forgiving Chapter 7.

District of Columbia v. Heller

2008 Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self- defense within the home.

Fair Debt Collection Protection Act (FDCPA)

2010, federal law that limits the behavior and actions of third-party debt collectors who are attempting to collect debts on behalf of another person or entity. Covers when, how, and how often a third-party debt collector can contact a debtor.

Schenck v. United States

A 1919 decision upholding the conviction of a socialist who had urged young men to resist the draft during World War I. Justice Holmes declared that government can limit speech if the speech provokes a "clear and present danger" of substantive evils.

Roth v. United States

A 1957 Supreme Court decision ruling that "obscenity is not within the area of constitutionally protected speech or press."

Miller v. California

A 1973 Supreme Court decision that avoided defining obscenity by holding that community standards be used to determine whether material is obscene in terms of appealing to a "prurient interest" and being "patently offensive" and lacking in value.

Regents of University of California v. Bakke

A 1978 Supreme Court decision holding that a state university could not admit less qualified individuals solely because of their race.

Free Exercise Clause

A First Amendment provision that prohibits government from interfering with the practice of religion.

Anti-Injunction Act

A U.S. federal statute enacted in 1793, prohibits the federal court from issuing injunctions against proceedings in any state court. Aims to eliminate the fear of states over the federal powers. Exceptional situations are: (1) the injunction is expressly authorized by Congress, (2) the injunction is necessary in aid of the federal court's jurisdiction, (3) the injunction is to protect or effectuate federal judgments

Fair Labor Standards Act

A U.S. law that is intended to protect workers against certain unfair pay practices or work regulations. Sets out various labor regulations regarding interstate commerce employment, including minimum wages, requirements for overtime pay, and limitations on child labor.

Inside Directors

A board member who is an employee, officer or direct stakeholder in the company. Typically include a company's top executives, as well as representatives of major shareholders and additional stakeholders (e.g., labor unions)

Counterclaim

A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.

Pretrial Conference

A conference, scheduled before the trial begins, between the judge and the attorneys litigating the suit. The parties may settle the dispute, clarify the issues, schedule discovery, and so on during the conference.

Express Contract:

A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.

Implied Contract:

A contract that comes about simply from actions of the parties. A contract formed in whole or in part from the conduct of the parties.

Option Contract:

A contract under which the offeror cannot revoke the offer for a stipulated time period (because the offeree has given consideration for the offer to remain open).

Writ of Execution

A court order that is granted to begin the transfer of assets, money or property as the result of a legal judgment. Necessary when a defendant is required by law to make a payment to a plaintiff but will not do so voluntarily.

Assumption of Risk

A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger. 1. Voluntary exposure to a known risk 2. You know of the risk, chose to take the risk and are harmed

Fraud:

A dishonest act by an employee that results in personal benefit to the employee at a cost to the employer.

Laissez-faire

A doctrine opposing governmental interference in economic affairs beyond the minimum necessary for the maintenance of peace and property rights

Promissory Estoppel:

A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding if justice will be better served by the enforcement of the promise.

Last Clear Chance Doctrine

A doctrine used by a plaintiff when the defendant establishes contributory negligence. If the plaintiff can establish that the defendant had the last opportunity to avoid the accident, the plaintiff may still recover, despite being contributorily negligent.

Shareholder Proposals

A document recommendation that a shareholder formally submits to a publicly traded company advocating the company take a specific course of action. Any shareholder who owns more than $2,000 in stock or 1% of the company is permitted to initiate a shareholder proposal.

Security Agreement

A document that provides a lender a security interest in a specified asset or property that is pledged as collateral; often contain covenants that outline provisions for the advancement of funds, a repayment schedule, or insurance requirements.

Securities Exchange Act of 1934

A federal law dealing with securities regulation that established the Securities and Exchange Commission to regulate and oversee the securities industry. a federal statute dealing with companies that trade securities on national and over-the-counter exchanges; auditors are involved because the annual reporting requirements include audited financial statements

Labor-Management Relations Act

A federal statute passed in 1947 that amended the Wagner Act of 1935, also referred to as the Taft-Hartley Act. Enlarged the National Labor Relations Board. Provisions include: (1)a listing of unfair labor practices that unions are prohibited from engaging in, (2) prohibition of the closed shop, (3) setting time periods for notifying the Federal Mediation and Conciliation Service of impending expiration of labor agreements, (4) establishing a temporary injunction in a strike which imperils the nation's health and safety along with specified impasse procedures, (5) authorizing the states to pass "right to work" laws, (6) prohibits union dues from being used to support political candidates in national elections

Bond

A fixed income instrument that represents a loan made by an investor to a borrower; typically corporate or governmental. Thought of as an IOU between the lender and borrower that includes the detail of the loan and its payments. Used to finance projects and operations. Details include the end date when the principal of the loan is due to be paid to the owner and usually includes the terms for variable or fixed interest payments made by the borrower. Units of corporate debt issued by companies and securitized as tradeable assets

Negotiation

A form of communication between opposing sides in a conflict in which offers and counteroffers are made and a solution occurs only when both parties agree

Acid Rain

A form of precipitation containing high levels of sulfuric or nitric acids; produced when sulfur dioxide and various nitrogen oxides combine with atmospheric moisture. Can contaminate drinking water, damage vegetation and aquatic life, and erode buildings and monuments.

Writ of Attachment

A form of prejudgment process in which a court orders the attachment or seizure of property specifically described in the writ. The property is seized and maintained in the custody of a designated official, who is usually a U.S. Marshal or law enforcement officer, under court supervision. Generally used to freeze assets of a defendant pending the outcome of a legal action.

Petition

A formal message requesting something that is submitted to an authority

Security

A fungible, negotiable financial instrument that holds some type of monetary value; represents an ownership position in a publicly traded corporation via stock represented by owning that entity's bond or rights to ownership as represented by an option. Two categories: equities and debts.

Shareholder Meetings

A gathering of company officers, board of directors, and shareholders. Held after the close of each fiscal year when the company's performance over the past year is reviewed, the shareholders elect the board of directors, and vote on matters affecting the company's operation.

Patent

A grant from the federal government to the applicant to have the right to make, use, sell, or allow others to use invention; not automatic like a copyright, must be registered with U.S. Patent and Trademark Office (USPTO)

Open-Ended Credit Transaction

A preapproved loan between a financial institution and borrower that may be used repeatedly up to a certain limit and can subsequently be paid back to payments coming due.

NLRB v. Washington Aluminum Co. (1962)

A group of non-unionized manufacturing employees walked off the job to protest the lack of adequate heating in the plant where they worked. The U.S. Supreme Court ultimately ruled that the employer's discharge of these employees was illegal under the NLRA because that law protected non-unionized employee concerted activity when such activity was for "mutual aid or protection"

Corporate Officers

A high-level management official of a corporation or an incorporated business, hired by the board of directors of a corporation or the owner of a business. Have the actual or apparent authority to contract or otherwise act on behalf of the corporation or business

Default Judgement

A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim.

Judgment Not Withstanding the Verdict

A judgment made by a judge contrary to a prior jury verdict whereby the judge effectively overrules the jury's verdict. Also called the \j.n.o.v.\ or the \judgment non obstante veredicto\. Similar to the directed verdict, except that it occurs after the jury has issued its verdict.

Collective Bargaining Agreement

A labor contract with the employer covering the employees in the given bargaining unit. Typical duration is three years and set forth in specific detail the employment relationship governing the given employees during this time period. A typical labor contract/collective bargaining agreement will set forth rates of pay for given workers including contracted pay increases and/or bonuses during the three-year period. Provisions in the contract will also likely deal with vacation rights, rights to overtime work, rights of seniority in case of layoffs, etc. First step is to determine which issues fall within the statutory definition of mandatory subjects; when it does not, either party may attempt to impose its proposal on the other through a strike or lockout.

Derivative Actions

A lawsuit brought by a corporation shareholder against the directors, management and/or other shareholders of the corporation, for a failure by management. In effect, the suing shareholder claims to be acting on behalf of the corporation, because the directors and management are failing to exercise their authority for the benefit of the company and all its shareholders. This type of suit often arises when there is fraud, mismanagement, self-dealing and/or dishonesty which are being ignored by officers and the board of directors of a corporation

Litigation

A lawsuit filed in order to have issues resolved by the courts when disputes cannot be resolved through mutual agreement or compromise, unavoidable in both good and bad circumstances

Security Interest

A legal claim on collateral that the borrower provides that allows the lender to repossess the collateral and sell it if the loan goes bad; lowers the risk for a lender, allowing it to charge lower interest on the loan which means the borrower's cost of capital will also be reduced.

Purchase Money Security Interest (PMSI)

A legal claim that allows a lender to repossess property financed with its loan or demand repayment in cash if the borrower defaults; gives the lender priority over other creditors' claims. Outlined in the Uniform Commercial Code. The goods sold are serving as collateral that can be seized for nonpayment, generally protects retailers who offer point-of-sale financing.

Homestead Exemption

A legal provision that helps shield a home from some creditors following the death of a homeowner spouse or the declaration of bankruptcy. Texas affords unlimited financial protection against unsecured creditors for the home, although acreage limits may apply for the protected property.

Materialman's Lien

A lien on property for materials supplied. Generally provided for the protection of one who supplies materials for use in the construction of a building or other improvement.

Execution of Lien

A method of enforcing a judgment against the property of a person against whom a judgment has been rendered.

Mediation

A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.

Motion for New Trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.

Institutional Investor

A nonbank person or organization that trades securities in large enough share quantities or dollar amounts that it qualifies for preferential treatment and lower commissions. An organization that invests on behalf of its members; face fewer protective regulations because it is assumed they are more knowledgeable and better able to protect themselves. Generally six types: endowment funds, commercial banks, mutual funds, hedge funds, pension funds and insurance companies. Perform the majority of trades on major exchanges and greatly influence the prices of securities; largest force behind supply and demand.

Debtor

A person or entity who owes an obligation of a fixed or certain amount.

Offeree:

A person to whom an offer is made.

Creditor

A person to whom money, goods or services are owed by the debtor

Offeror:

A person who makes an offer.

Lessee

A person who rents land or property, must uphold specific obligations as defined in the lease agreement and by law.

Shareholder

A person, company, or institution that owns at least one share of a company's stock; they are essentially owners in a company and reap the benefits of a business' success. As equity owners, they are subject to capital gains (or losses) and/or dividend payments as residual claimants on a firm's profits. Enjoy certain rights such as voting at shareholder meetings to approve things like board of directors' members, dividend distributions, or mergers.

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

Best Available Control Technology (BACT)

A pollution control standard mandated by the United States Clean Air Act. Does not permit pollution in excess of those allowed under the provisions of the United States Air Act; required on major new or modified sources in clean areas (i.e., attainment areas).

Special Agency:

A principal gives an agent the power to perform specific acts, but not to bind the principal - also called limited agency

Offer:

A promise or commitment to perform or refrain from performing some specified act in the future.

Reformation:

A religious movement of the 16th century that began as an attempt to reform the Roman Catholic Church and resulted in the creation of Protestant churches.

Affirmative Defense

A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action. An example is the running of the statute of limitations.

Exclusionary Rule

A rule that provides that otherwise admissible evidence cannot be used in a criminal trial if it was the result of illegal police conduct

Acceptance

A second party's unqualified willingness to go along with the first party's proposal.

Interrogatories

A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.

Rational Basis Test

A standard developed by the courts to test the constitutionality of a law; when applied, a law is constitutional as long as it meets a reasonable government interest.

Reasonable Person Test

A standard for the degree of care exercised in a situation that is measured by what a reasonably cautious person would or would not do under similar circumstances. Used to determine negligence

Know Thy Customer Rule

A standard in the investment industry that ensures investment advisors know detailed information about their clients' risk tolerance, investment knowledge, and financial position. Protects both clients and investment advisors; clients are protected by having their investment advisor know what investments best suit their personal situations, investment advisors are protected by knowing what they can and cannot include in their client's portfolio.

Morse v. Frederick

A student at a local high school hung up a banner saying "Bong Hits 4 Jesus" which advertises the use of marijuana. The principal ordered that the banner be taken down and the student be suspended. Result: School officials can prohibit students from promoting the use of drugs and does not violate the student's 1st A rights. A decision was not reached about whether Morse was immune to being sued, being a school official. Case is similar to Hazelwood.

Parol Evidence Rule:

A substantive rule of contracts under which a court will not receive into evidence the parties' prior negotiations, prior agreements, or contemporaneous oral agreements if that evidence contradicts or varies the terms of the parties' written contract.

Smith v. Allwright

A supreme court case in 1944 that ruled that it was unconstitutional to deny membership in political parties to African Americans as a way of excluding them from voting in primaries. Outlawed White primaries held by the Democratic Party, in violation of the 15th Amendment.

Living Wage

A theoretical income level that allows an individual or family to afford adequate shelter, food, and the other basic necessities. Goal is to allow employees to earn enough income for a satisfactory standard of living and to prevent them from falling into poverty. Often suggested to be quite a bit higher than the legally-mandated minimum wage.

Tender Offer

A type of public takeover bid constituting an offer to purchase some or all of shareholders' shares in a corporation. Typically made publicly and invite shareholders to sell their shares for a specified price and within a particular window of time. Price offered is usually at a premium to the market price and is often contingent upon a minimum or maximum number of shares sold.

Stock

A type of security that signifies proportionate ownership in the issuing corporation; entitles the stockholder to that proportion of the corporation's assets and earnings. Corporations issue stock to raise funds to operate their businesses; two main types: common and preferred. Bought and sold predominantly on stock exchanges.

Substituted Service

A type of service in which the summons and complaint are delivered to the defendant's agent, mailed, or published in a newspaper Delivery of process in a method other than personal service (such as by mail or by publication).

Environmental Sexual Harassment

A type of sexual harassment that creates an abusive work environment that impedes workers from doing their job.

Workplace Pay Secrecy Rules

A workplace policy that prohibits employees from talking about how much money they make with coworkers. Policies can be: (1) discussed verbally, (2) implied by the employer, (3) written down. Limited by the NLRA, allows workers to discuss topics that impact them at work (e.g., wages); employees can legally discuss their compensation, regardless of whether they signed a nondisclosure agreement. Exceptions include independent contractors and agricultural workers who are not treated as employees; local, state, and governmental workers are not subject to the NLRA.

Libel

A written defamation of a person's character, reputation, business, or property rights a published false statement that is damaging to a person's reputation; a written defamation.

Brief

A written statement by an attorney that summarizes a case and the laws and rulings that support it

Lee takes a picture of the sunset with a windmill in front of the sun. The windmill is not associated with any product or company. He decides that he wants to protect the photograph as his intellectual property. His best way to do so would be by: A) Copyright B) Patent C) Trademark D) Service mark E) C and D

A: Copyright

MacPhearson v. Buick Motor Co. established which type of products liability? A) Negligence theory B) Expressed warranty theory C) Implied warranty theory D) Strict liability E) Market Share liability

A: Negligence Theory

Federal Register

An official document, published every weekday, that lists the new and proposed regulations of executive departments and regulatory agencies.

"Fourth Branch of Government"

Administrative Agencies, in reality supplement other three branches of government rather than being a fourth branch

False Advertising

Advertising That Makes Untrue Claims Of Quality Or Effectiveness About Goods Or Services Offered For Sale Similar to product disparagement, except deals with your own product

Private Nuisance

Affects one or a few people

Exception to Trespass to Land

Aircraft flying at a reasonable height above land

Federal Trademark Dilution Act of 1995

Allowed trademark holders to sue non-competitors for: 1. Blurring- Totally unrelated product uses trademark (e.g., use Xerox for a baby oil treatment) 2. Tarnishing- Using trademark in negative fashion (e.g., Coca-cola Santa using cocaine poster) 3. Dilution can be seen in some parody cases

Necessary & Proper Clause

Allows Congress "To make all Laws which shall be necessary and proper for carrying into Execution" those specifically enumerated powers

Supremacy Clause

Allows Congress to make federal law which is "the Supreme Law of the Land"

Fair Use Doctrine

Allows a user to make a copy of all or part of a work within specific parameters of usage, even if permission has not been granted.

Closely Held Corporations

Also known as Close Corporations. A corporation created under state corporation statutes. Any company with a limited number of shareholders. Infrequently exchanged stocks.

National Labor Relations Act (NLRA)

Also known as the Wagner Act of 1935, specifically legalizes unions. "Magna Carta" of the American labor movement

ADR

Alternative Dispute Resolution. Any method of resolving disputes without litigation. Public courts may be asked to review the validity of ADR methods but will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them. Two major types: arbitration and mediation.

Sierra Club

America's oldest and largest grassroots environmental organization founded in 1892 in San Fransisco, Cali first President was John Muir group was pushed by the wealthy bc they wanted to conserve the nature (despite all the land the already own and "corrupted") for their later generations

Wagner Act of 1935, Section 7

American "employees shall have the right to self-organization, to form, join, assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other activities

Member-Managed

An LLC governed by the members of the LLC, structure and operation more closely resembles the partnership structure. Each member gets one vote in the firm's business decisions and the members are agents of the LLC. Members still have limited liability and do not have personal liability for LLC debts or debts incurred by other members

Trademark

Any word, name, symbol or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods (15 U.S.C. Section 1127)

Undue Hardship

An action requiring significant difficulty or expense when considered in a number of factors like the nature and cost of the accommodation in relation to the size, resources nature, and structure of the employer's operation.

Proxy

An agent legally authorized to act on behalf of another party or a format that allows an investor to vote without being physically present at the meeting; shareholders may vote their shares by proxy by allowing someone else to cast votes on their behalf, or they may vote by mail.

Illusory Contract:

An agreement that gives the appearance of a contract, but in fact is not a contract because it lacks one of the essential elements.

Whistleblowing

Anyone who has and reports insider knowledge of illegal activities occurring in an organization.

Equity

An area of the law separate from the traditional common law, developed in England at the same time as the common law developed, and its primary purpose was to avoid unjust results occurring from strictly following the rules of the common law

Free Market

An economic system based on supply and demand with little or no government control. A summary description of all voluntary exchanges that take place in a given economic environment; characterized by a spontaneous and decentralized order of arrangements through which individuals make economic decisions

Board of Directors

An elected group of individuals that represent shareholders; a governing body that typically meets at regular intervals to set policies for corporate management and oversight. Every public company must have a board of directors, and some private and nonprofit organizations choose to have a board of directors. The board makes decisions as a fiduciary on the behalf of shareholders. Issues under their purview include the hiring and firing of senior executives, divided policies, options policies, and executive compensation; responsible for helping a corporation set broad goals, supporting executive duties, and ensuring the company has adequate, well-managed resources at its disposal. Structure and power is determined by an organization's bylaws.

Concerted Activity

An employee action (as canvassing other employees) that concerns wages or working conditions of others in addition to the employee and that contemplates group activity. Protected by Section 7 of the National Labor Relations Act and cannot be used as a reason to discharge or discipline an employee. More recent applications have occurred with respect to employee usage of social media to comment about conditions at their workplaces

Specific Performance:

An equitable remedy requiring the breaching party to perform as promised under the contract; usually granted only when money damages would be an inadequate remedy and the subject matter of the contract is unique (for example, real property).

Securities & Exchange Commission

An independent federal government agency responsible for protecting investors, maintaining fair and orderly functioning of the securities markets, and facilitating capital formation. Created by Congress in 1934 as the first federal regulator of the securities markets. Promotes full public disclosure, protects investors against fraudulent and manipulative practices in the market, and monitors corporate takeover actions in the U.S; also approves registration statements for bookrunners among underwriting firms.

Secured Creditor

An individual or business that is having a claim against a debtor who has secured an amount from the creditor by a lien on the debtor's property; has security from the owner's default, and from minimizing amount that can be collected by other creditors. Ensures repayment of loan amounts due once a loan is established and is backed by collateral.

Berne Convention of 1989

An international copyright treaty a multilateral agreement offering protection of literary and artistic works among member countries

Protective Order

An order issued by a family court (district or county court) to order the protection of a family member or member of a household against further family violence. It is criminally enforceable under Section 25.074 of the Texas Penal Code. a decree by a court to protect a person or a legal entity against harassment by another person or to protect certain documents, such as trade secrets, against discovery in the litigation process

Injunction:

An order which legally prevents something

Disparate Impact

An unintentionally discriminatory policy that adversely impacts an otherwise protected class of people. A legal doctrine that declares that a policy can be discriminatory if it "adversely impacts" a group based on that group's traits, especially true when there is no legitimate need for such a policy.

Retaliation

Any adverse action that a company takes against an employee because they filed a complaint about harassment or discrimination. Adverse actions can include firing the employee, giving them negative evaluations, disciplining or demoting them, reassigning them or reducing their pay.

Corporate Opportunity Doctrine

Any business opportunity that may benefit a corporation; governs the legal responsibility of directors, officers and controlling shareholders in a corporation, under the duty of loyalty, not to take such opportunities for themselves without first disclosing the opportunity to the board of directors of the corporation and giving the board the opportunity to decline the opportunity on behalf of the corporation. If this procedure is violated, and a corporate fiduciary takes the corporate opportunity anyway, then the fiduciary has violated its duty of loyalty, and the corporation will be entitled to a constructive trust of all profits obtained from the wrongful transaction

Consumer

Any individual who purchases goods or services, which may be sold by manufacturers, wholesalers, or retailers

Trade Secrets Can Include:

Any information that would give the competitor an edge 1. Formulas 2. Customer lists 3. Price lists 4. Research 5. Plans for the future development 6. Marketing Techniques

fraudulent misrepresentation (fraud)

Any misrepresentation, either by misstatement or omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment.

Lien

Any official claim or charge against property or funds for payment of a debt or an amount owed for services rendered. Usually a formal document signed by the party to whom the money is owed

Personal Property

Any other property Tangible: touchable (clothes, vehicle) Intangible: cannot touch (stocks)

Electronic Fund Transfer

Any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, direct deposits or withdrawals of funds, and transfers initiated by telephone.

Inside Information

Any type of data that is obtained by someone not from public disclosure, but from a source within the company or a source that owes the company a duty to keep the information confidential. A non-public fact regarding the plans or condition of a publicly traded company that could provide a financial advantage when used to buy or sell shares of that or another company's securities. Illegal when the material has not been made public and has been traded on; undermines general investor confidence in the integrity of the market and can dampen economic growth.

Trespass to Real Property/Trespass to Land/Trespass

Any unauthorized physical intrusion or entry upon land where someone else has a superior right to the property

Courts of Appeal

Appellate courts empowered to review all final decisions of district courts, except in rare cases. In addition, they also hear appeals to orders of many federal regulatory agencies.

Examples of Arbitrary Trademarks

Apple logo

While Patent is Pending the decision of the Patent Office Examiner...

Applicants normally use phrase "Patent Pending" or "Patent Applied For" (have no legal authority except in provisional); used to give notice than an application was filed with the USPTO

Principal-Agent Problem

Arises when one party (agent) agrees to work in favor of another party (principal) in return for some incentives. Due to the huge costs incurred by the agent, the agent might begin to pursue his own agenda and ignore the best interest of the principal, thereby causing the problem to occur.

Authorization Cards

At least 30% of employees must sign authorization cards expressing their interest in unionization for a labor union representation election to be held by the NLRB to determine whether employees in a given unit truly want a union. If the requisite number of employees sign the cards the NLRB will schedule a secret ballot election to be held in the near future, where the employees will vote "yes" or "no". The NLRB makes special efforts to assure the electoral process is 100% secret and completely free from any fraud or abuse

Howard and his girlfriend decide to drive through a crowd in the nude on his motorcycle to attend the "streak in" outside the Academic Building. The motorcycle dies and he has to jump start the motorcycle while she stands next to him trying to describe what to cover up. The student newspaper takes a picture and publishes it in the next edition of the paper and names of Howard and his girlfriend. If Howard and his girlfriend sue, what is the probable tort and result? A) Invasion of Privacy and they would win B) Invasion of Privacy but they would lose C) Defamation and they would win D) Defamation and they would lose E) B and D

B: Invasion of Privacy but they would lose

Mary tries to register the name of her product, "Twin Cities Pretzels" and is turned down by the federal government. Which of the following is true: A) Mary must seek protection under trade name law B) Mary can utilize state law for trademark protection C) Mary can copyright her name D) A and C E) A, B, and C

B: Mary can utilize state law for trademark protection

During Boot Line when A&M is playing tu on national TV and the game is covered by ABC. Puck the bad Ag drops his pants and shows his tattoos of "Beat to" on his left cheek and "12 Man Rocks" on his right cheek. He is caught on national TV during the half time activities part of the ABC coverage with his pants down. The following week Puck is expelled from TAMU and IBM calls him and tells him that the job offer they made is no longer a realistic option. Both were done due to the TV incident. Puck sues ABC for Invasion of Privacy. What will be the result of Puck's lawsuit? A) Puck will lose due to being mentally imbalanced B) Puck will lose b/c what he did was in public C) Puck will win b/c ABC has a lot of money D) Puck will win due to ABC invading his privacy E) There is insufficient information to make an informed decision

B: Puck will lose b/c what he did was in public

Interstate Commerce

Between states

Labor Organization

Broadly defined by NLRA Section 2(5) to mean "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work"

Chapter 9

Business Entities

Which of the intentional torts does Texas NOT recognize? A) Infliction of emotional damages B) Intentional interference with contractual relations C) Interference with prospective economic advantages D) Malicious prosecution E) B and C

C: Interference with prospective economic advantages

Mary thinks that Sterling is the best looking guy in school. Mary asks Sterling out and he rejects her. She finds out that Sterling is a gay and dances at a Gay Bar. Mary tells the whole class at the next class meeting. Sterling sues Mary for defamation and invasion of privacy. Sterling will: A) Win both cases if he can prove that he suffered damage B) Win if people in the class heard the accusation and the accusation is in fact true C) Lose the defamation case if in fact he is a gay and dances at the alleged club but win the invasion of privacy case if there was disclosure of private facts D) Lose the defamation case if in fact he is a gay and lose the invasion of privacy case since he dances in public at a gay bar and who cares if he is a gay E) There is insufficient information to formulate an answer to this question

C: Lose the defamation case if in fact he is a gay and dances at the alleged club but win the invasion of privacy case if there was disclosure of private facts

The Lanham Act covers: A) Copyrights B) Patents C) Trademarks D) Trade secrets E) Trade names

C: Trademarks

Defenses to assault and battery include all of the following except: A) Consent B) Privilege C) Truth D) Self-defense E) All of the above

C: Truth

Operating Agreement

Can be oral or a few states require it to be in writing. Governs the internal affairs of the LLC and the relations among members, managers, and officers of the company. Usually can only be amended with consent of all of the members of the LLC. Should specify to the LLC the division of the income of the members, how a membership is transferred, what happens upon dissolution of the LLC, and other important matters. Called a Company Agreement in Texas.

Assumption of the Risk

Can be used if plaintiff: 1. Had knowledge of the facts giving rise to the dangerous situation 2. Knew the situation was dangerous 3. Knew the nature and extent of the danger 4. Voluntarily did the dangerous activity

Descriptive Trademark

Can describe the product but not directly, it can only suggest a quality of the product; if too descriptive, cannot be trademarked Trademark that Describes the Product, but indirectly, and can only suggest a Quality of the Product, without too much detail not usually granted unless proven to have a strong public identification (2nd Meaning)

Suggestive Trademark

Can suggest a characteristic of the product, cannot describe the underlying product with specificity Trademark that hints at a Characteristic of the the Product, but does not reveal underlying Product with Specificity ex: Microsoft, Citibank, Jaguar

New York Times Co. v. United States

Censorship cases ("prior restraint") - Speech that addresses matters of public concern may not be censored. (1971) "Pentagon Papers" case decided Nixon's attempted "prior restraint" was unconstitutional interference with press freedom

Tort

Civil wrong other than breach of contract for which the law provides a remedy in the form of damages

Strike

Collective, organized, cessation or slowdown of work by employees, to force acceptance of their demands by employers. To be legal: (1) must be approved by the majority of the employees in a secret ballot, (2) the ballot must be subject to independent verification if the number of employees exceeds a certain number (i.e., 50), (3) a notice of the impending ballot must be given to the employer a certain number of days in advance (i.e., 7 days), (4) the employer must be provided with the results of the ballot, (5) a notice of the union's intention to proceed must be given to the employer a certain number of days in advance (i.e., 7 days)

Supreme Court

Consists of nine justices, each appointed by the President and confirmed by Congress. Appointment is for life. Supreme Court exercises the power to determine constitutionality of statutes Can also have a state Supreme Court with different rules

Chapter 2

Constitutional Law

Universal Agency:

Complete authority over all activity of the principal. May be created by an unlimited power of attorney. A principal gives an agent the power to transact matters of all types for him

Appellate Court

Comprise the higher rungs of the ladder that lead to the highest court in the system, primarily concerned with whether or not error occurred at the lower court. Relies on the record, the briefs of the parties, and oral argument to determine error

Public Law

Concerns controversies between private parties and the government

Rule 16(b)

Confidentiality of Information

American Inventors Protection Act (AIPA) of 1999

Congress enacted the American Inventors Protection Act, which permits an inventor to file a provisional application with the PTO so that the inventor has time to prepare and file a final and complete patent application with the PTO. a federal statute that permits an inventor to file a provisional application with the U.S. Patent and Trademark Office three months before the filing of a final patent application, among other provisions.

United States v. Eichman

Congress in an effort to change the Court's ruling on Texas v. Johnson passed a federal law, the Flag Protection Act of 1989, prohibiting the burning of the American flag. The Supreme court also declared the federal law unconstitutional on the same basis as they had declared the Texas law unconstitutional

Substantive Due Process

Constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable; limits what a government may do.

Procedural Due Process

Constitutional requirement that governments proceed by proper methods; limits how government may exercise power.

Yellow Dog Contracts

Contracts whereby an employee as a condition of taking a job with a certain employer agreed not to join a union or engage in any union organizing activities while working for the given company. Courts during the 1920s regularly upheld such contracts pursuant to the doctrine of "freedom of contract"

Guth v. Loft, Inc.

Corporate officers and directors are not permitted to use their position of trust and confidence to further their private interests.

Family Corporations

Corporation in which shareholders are all close relatives.

In Rem Jurisdiction

Court jurisdiction over a defendant's property. Jurisdiction to hear a case because of jurisdiction over the property of the lawsuit

In Personam Jurisdiction

Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

Meritor Savings Bank v. Vinson (1986)

Court ruling that first held that sexual harassment violates Title VII of the Civil Rights Act of 1964 regardless of whether it is quid pro quo or hostile environment harassment. This established the principle that an employer is liable for quid pro quo sexual harassment even if the victim prefers not to report it until a lawsuit

Yakus v. United States (1944)

Court upheld delegation of Legislative Power, so long as sufficient standards are set up, and the powers are limited. Held that Administration Agencies were constitutional

Affirmative Action

Created as a part of the Civil Rights Act of 1964, refers to the practice of requiring businesses to contract with the federal government to promote equal opportunities among races, genders, religions, sexual orientations, people with disabilities, and veterans in an effort to counter past discrimination against these minority groups. Government effort to promote equal opportunity in the workplace and in education.

Limited Partnership (LP)

Created by state statute and requires a filing of documents to create the limited partnership; must file a Certificate of Limited Partnership. Two classes of partners: general partners and limited partners. Must have at least one of each class of partner at all time, but can have many. Good for the investor who does not and will not take any part in any of the management of the business. Good way for general partners to raise capital by taking in a limited partner.

Howey Test

Created by theU.S. Supreme Court; it defines a security as an investment in a common enterprise that earns profits from the efforts of others.

Criminal Law

Designed to further society's interest in preventing crime and punishing criminals, not to provide remedies for victims of crime who turn to civil law; exclusively statutory in nature

Occupational Safety and Health Act

Created to protect worker and health. Its main aim was to ensure that employers provide their workers with an environment free from dangers to their safety and health, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, heat or cold stress, or unsanitary conditions.

Tort vs. Criminal Law Standard of Proof

Crimes: Beyond any reasonable doubt Tort: More likely than not standard

Tort vs. Criminal Law Punishment

Crimes: Fine or imprisonment Tort: Making the defendant pay money for damages

Tort vs. Criminal Law Who's Affected?

Crimes: Society as a whole Tort: Against only the party that was wronged

5th Amendment

Criminal Proceedings; Due Process; Eminent Domain; Double Jeopardy; Protection from Self incrimination

The Student Body President at a major university goes to a party and gets drunk. He then tells all of the attendees at the party that the very popular basketball coach is really a child molester and that he was at a meeting where the President of the University has decided to fire the coach. One of the party goers is the editor of the University student newspaper and she makes this the headline story in the next edition of the paper. The basketball coach sues for defamation per se? What must he prove to win? A) That the statements were false B) That the harm is so bad that he would not have to prove harm C) That the supposed defamation was actually published D) All of the above E) A and B only

D: All of the above A) That the statements were false B) That the harm is so bad that he would not have to prove harm C) That the supposed defamation was actually published

One of the biggest companies to benefit from the Sonny Bono Copyright Extension Act of 1998, as discussed in class, was: A) Hanna Barbara B) Budweiser C) Microsoft D) Disney E) Random House Publishing

D: Disney

In Two Pesos, Inc. v. Taco Cabana, Inc. the Supreme Court held that a Mexican-style restaurant could not copy the decor of a competitor because of the law protecting: A) Copyrights B) Patents C) Trade names D) Trade dress E) Trade secrets

D: Trade dress

Chapter 13

Debtor-Creditor and Consumer Credit Law

Separation of Powers

Designed to control the use of the powers granted by the states to the federal government

Substantive Law

Define rights and duties, seen as the meat of or heart of the law

Procedural Law

Define the procedural means through which violations of rights and duties are remedied, the "how to of the law"

Constitutional Law

Derived from the U.S. Constitution, if any other laws of whatsoever type are found to be unconstitutional then those laws cannot exist

Deterrence

Desire is to alter the behavior to prevent accidents; generates public policy prescriptions based on efficiency "Least-Cost Avoider"

Public figures live by publicity so there becomes a fine line between invasion of privacy or

Desired publicity

Request for Production

Discovery tool in which one side asks the other side to produce documents relevant to the case. a request to an opposing party for documents relevant to the lawsuit

B.L. Nelson & Associates, Inc. v. City of Argyle:

Distinguishes between Executory and Executed Contracts: --Executed Contracts exist where nothing remains to be done by either party --Executory Contract (Partially Executed Contract) is one which is still unperformed by both parties or one with respect to which something still remains to be done on both sides "executed contracts exist where nothing remains to be done by either party while an executory contract is one which is still unperformed by both parties or one with respect to which something still remains to be done on both sides"

Ferrous Products Co. v. Gulf State Trading Co.:

Distinguishes between Implied-in-fact and Implied-in-law --Implied-in-fact = Merely a tacit promise --Implied-in-law = Neither the words nor the conduct of the party involved are promissory in form or justify an inference of a promise --Quasi-contractual Obligation = one made/created by law (Judge) for reasons of justice without any expression of assent and sometimes even against a clear expression of dissent

Registration Statement

Documents filed with the Securities & Exchange Commission (SEC) by a privately held company, declaring its intent to offer shares of its stock to the general. A legal document filed with the SEC to register securities for public offering that details the purpose of the proposed public offering; outlines financial details, a history of the company's operations and management, and other facts of importance to potential buyers.

Defenses to trespass include all of the following: A) A trespasser enters the property to assist a non-trespasser who is in danger B) A trespasser enters the property to assist even a trespasser who is in danger C) A trespasser enters the property and improves the property D) A trespasser enters the property to save the property from danger E) A, B, D (NOT C)

E: A, B, D A) A trespasser enters the property to assist a non-trespasser who is in danger B) A trespasser enters the property to assist even a trespasser who is in danger D) A trespasser enters the property to save the property from danger

Negligence requires: A) A duty owed to the injured party B) Harm to the injured party C) Breach of the duty D) Causation E) All of the above

E: All of the above A) A duty owed to the injured party B) Harm to the injured party C) Breach of the duty D) Causation

The purpose of tort law is: A) Compensation B) Justice C) Deterrence D) Social Insurance E) All of the above

E: All of the above A) Compensation B) Justice C) Deterrence D) Social Insurance

Which of the following are protected by copyright law? A) An invention B) Architectural designs C) Writing a story about a historical event D) The actual news itself E) B and C

E: B and C B) Architectural designs C) Writing a story about a historical event

You are at a party and Herman gets very drunk. You try to take his keys away from him so that he will not drive home drunk. To get the keys away from Herman you hold him down and make him give you the keys by force. Herman, however, is not hurt. Once he sobers up, Herman sues you for Assault, Batter, and False Imprisonment. Which of the following is correct about this situation? A) Herman wins b/c you did do those things B) Herman cannot win under any circumstances b/c you had proper motives C) Herman wins if you acted unreasonably D) You win if the court finds that you were privileged in your actions E) C and D

E: C and D C) Herman wins if you acted unreasonably D) You win if the court finds that you were privileged in your actions

Sam points a water pistol at Jane who thinks Sam is going to kill her. Jane is terrified and runs away. Jane sues Sam. What will probably happen? A) The law would always rule for Sam since it was just a water pistol B) The law would always rule for Jane since she was terrified C) If the judge or jury felt that a reasonable person would be afraid, they would rule for Jane D) If the judge or jury felt that it was unreasonable to be afraid of that particular water pistol, they would rule for Sam E) C and D

E: C and D C) If the judge or jury felt that a reasonable person would be afraid, they would rule for Jane D) If the judge or jury felt that it was unreasonable to be afraid of that particular water pistol, they would rule for Sam

Kelo v. City of New London

Eminent domain case: Local governments may force the sale of private property and make way for private economic development when officials decide it would benefit the public.

Just Cause

Employees can only be fired for "just cause". "Just cause" provisions basically overrule the doctrine of employment-at-will in that employers cannot simply fire employees "at will", that is, they have to show "cause" for the discharge and often prove such "cause" to an outside arbitrator.

Grievance Procedure

Employees with complaints during the three-year contractual period have a process which they can air their concerns. Most labor contract grievance procedures have various "steps" (e.g., step one - talk to your immediate supervisor about your grievance), ultimately culminating in labor arbitration

Good Faith Bargaining

Employers must bargain collectively in "good faith" with duly elected employee unions regarding wages, hours, and other terms and conditions of employment. The NLRA in Section 8(d) states that neither side is ever "compelled" to reach an agreement

Landrum-Griffin Act of 1959

Enacted 12 years after Taft-Hartley, Congress even further regulated and cut back on the power of U.S. labor unions. Labor unions brought this additional governmental regulation on themselves by forming alliances with the Mafia as a way to further regain power in the 1950s.

Taft-Hartley Act of 1947

Enacted by a Republican Congress over the veto of President Harry Truman, achieved the goal demanded by the people to cut-back union power. "Slave Labor Act", represented the beginning of the long decline in private sector unionism. Most significant amendatory language was the addition of a provision to Section 7 that employees not only had the right to form unions, but also now had the "right to refrain" from joining unions or engaging in other forms of self-organization. New Section 14 provisions allowing states to enact rights to work laws

Clayton Antitrust Act

Enacted in 1914 by Samuel Gompers and others in the U.S. Congress. Specifically excluded labor unions from U.S. antitrust laws

Age Discrimination in Employment Act

Enacted in 1977, makes it unlawful for organizations with 20 or more employees to base decisions (e.g., pay, benefits, promotions) on a person's age; employers should focus on employee skills and talent. Covers employees of 40 or more years of age, does not protect young workers from age discrimination.

Dissolution

End of the independent existence of a firm, brought about by consolidation or merger, creditors, government, or the shareholders. Occurs due to the following: (1) at the end of the fixed period when the duration of the LLC expires (but most LLCs are now perpetual), (2) the occurrence of specified events in the operation agreement or Articles of Incorporation, (3) action of the members to dissolve the LLC, (4) when the LLC has no members, (5) entry of a decree of judicial dissolution. Generally, LLCs continue as long as they have at least one continuing member (2006 amendments to the Texas LLC law)

Baroid Equipment, Inc. v. Odeco Drilling, Inc:

Established Texas' elements of a contract: 1) Offer 2) Acceptance 3) Meeting of the minds 4) Each party must consent to the terms 5) If it must be in writing, it must be executed and delivered with the intent that it be mutual and binding as determined by the objective standard**

Supervisor

Excluded from the coverage of the NLRA. A supervisor is any "individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees" if their authority to do so "is not of a merely routine or clerical nature, but requires the use of independent judgement"

Hudson v. Michigan

Exclusion is not an available remedy for violations of the "knock and announce" rule in the execution of search warrants.

Long Arm Jurisdiction

Exercised over non-residents who have: Committed torts within the state Entered into a contract either in the state or that affects the state Transacted other business in the state that allegedly caused injury to another person The personal jurisdiction that a state acquires over a nonresident defendant because of his or her purposeful contact with the state.

Why is the Patent Registration Process Difficult?

Expensive, Time Consuming, Very Technical

Indust-Ri-Chem Labs v Park-Pak (1980)

Express Warranty can be by Sample (Defendant changed the specifics of a sample for a Purchaser) Texas recognizes that Express Warranty can be sample --The manufacturer was held liable for changing the specifics of a sample they had given the purchaser

Libel in the Civil Practice and Remedies Code, Chapter 73

Expression in written or other graphic form that tends to blacken the memory of the dead or tends to injure a living person's reputation exposing that person

Political Speech

Expressions which comment on government action rather than the private conduct of an individual.

Hill v. Western Union Telegraph

Extremely drunk employee behind counter told lady customer "If you come back here and let me love and pet you, I'll fix your clock" -> sued for ASSAULT --Lost at appellate level b/c he did not act within scope of his employment Assault is valid even if the act could not actually be carried out, so long as a Reasonable Person would have perceived a threat and would believe the threat could be carried out

Government agencies regulates products

FDA, CPSC

Court Reorganization Bill 1937

FDR proposed a bill that would allow the President to appoint up to six additional Supreme Court members for each justice over 70. It was an attempt to prevent further reactionary rulings from a conservative court. However, it did not pass.

First National Maintenance Corp. v. NLRB (1981)

FNM supplies its customers a contracted-for maintenance labor force and supervision for a plus fee costs. Relationship with one customer (Greenpark Care Center) was not very remunerative or smooth. FNM decided to terminate its contract with Greenpark. While FNM was experiencing the difficulties which led to the contract termination, its employees at Greenpark selected a union as their bargaining agent; the employees were terminated when the contract terminated and a complaint was filed with the NLRB. The NLRB held that FNM had a duty to bargain under Sections 8(a)(5) and 8(d) with the union over the decision to close the Greenpark operation; the Court of Appeals enforced the order and the Supreme Court granted certiorari. The Supreme court held that management must be free from the constraints of the bargaining process to the extent essential for the running a profitable business; management decisions of the kind here involving the scope and direction of the enterprise should NOT be subject to collective bargaining.

Skinner v. Oklahoma

Facts: Sterilization for criminals Issue: Was the act constitutional? Holding: No; Strict scrutiny because of indivious discriminations Rule: When the law concerning those who have committed intrinsically the same type of offense punishes one, but not the other by depriving the one of a fundamental right, an invidious discrimination has been made Concurrence: Real question was whether the wholesale condemnation of a class to an invasion of personal liberty without the opportunity to prove he is not of the type the law presumes him to be, is a violation of due process

Wickard v. Filburn

Farmer grew more wheat than allowed because he was being funded by congress. Congress said they could regulate that because even though it was for his personal consumption, it would effect interstate commerce. Expansion of power of the Commerce Clause

McLain v. Real Estate Board of New Orleans, Inc.

Federal government can regulate wholly local business that affects interstate commerce

Sherman Antitrust Act

Federal statute enacted in 1890 which prohibits activities that restrict interstate commerce and competition in the marketplace. Amended by the Clayton Act in 1914

Limited Liability Companies (LLC)

First created in Germany in the late 1800s, long used in Europe and Latin America before they became accepted in the U.S. Appealing business form because it combines the positive aspects of traditional corporations (e.g., limited personal liability) with those of partnerships (e.g., flow-through taxation/no double taxation). Generally involve less recordkeeping, start-up costs/registration fees that other possible alternatives. Texas became one of the first states to enact LLC legislation in 1991 (i.e., passed by Texas Legislature in May 1991, became effective on August 26, 1991); by the end of 1996 all 50 states and D.C. had passed similar legislation. Number of practical problems: when one member died or left the organization it "dissolved" and the remaining members had to literally form a new company. U.S. Internal Revenue Service made clear that distributions to given members flowed directly through to the individual for federal income tax purposed, but the rules were less clear in certain states with respect to state taxes. 2006 the U.S. National Conference of Commissioners on Uniform Law passed a revised LLC law. 2006 Texas passed new limited liabilities companies law effective January 1, 2010, all LLCs in the state became governed by this new law (i.e., no grandfathering); expressly permits LLCs to continue in business even if there is a "terminating event" involving one member so long as other members still remain with the firm. Created by filing Articles of Organization with the proper state official, once filed the state official will issue a Certificate of Organization and return it to the organizers; once this is done existence begins.

Title VII Civil Rights Act of 1964

Forbids discrimination on the basis of sex, race, color, religion, or national origin in all areas of the employment relationship

Defense to Assault/Battery: Self-Defense

Force allowed to reasonably defend self or others

Copyright

Form of protection for original works of authorship fixed in a tangible medium or that can be reduced to a tangible medium of expression and includes both published and unpublished works

Ratification:

Formal approval, final consent to the effectiveness of a constitution, constitutional amendment, or treaty

1st Amendment

Freedom of Religion, Speech, Press, Assembly, and Petition

Cammarano v. United States

Freedom of Speech | Commercial Speech Court added qualifications to the regulations of Commercial Speech. Justice Douglas admitted that the ruling in "Chrestensen" was "off-hand" Overturned Valentine v. United States and said that the Valentine decision (commercial speech is not protected) was hasty and had not survived reflection

Rubin v. Coors Brewing Co

Freedom of Speech | Commercial Speech Court invalidated law that prevented Beer Companies from advertising the Alcohol Content of their products. This overturned a 60 year old statute Supreme Court struck down a federal restriction against beer companies putting the alcohol content of the beer on their labels

First National Bank of Boston v. Bellotti

Freedom of Speech | Corporate Political Speech Court invalidate law that prohibited corporate political speech. However, the Court qualified that corporate political speech is not as protected as individual free speech

Garcetti et al v. Ceballos

Freedom of Speech | Public Employees Court distinguished between "Private" and "Public" Speech. Public employees can have the speech that is directly about their official duties and responsibilities sanctioned.

Why does intentional infliction of mental distress have to be more than just obscene and abusive language?

Freedom of speech, would lead to frivolous lawsuits

Defense to Trespass to Personal Property

If the meddling was in good faith

In Texas intentional infliction of mental distress is used as a...

Gap filler

Right to Work Laws

Gave employees the "right to work" without joining a union, even where a union had won an NLRB representation election and was representing said workers. About ½ of the states have passed right-to-work laws, most are generally more conservative and western states. Tend to deter union organizing efforts in those states because unions winning labor elections in those states can find themselves in the situation where they are paying monies to represent employees, but those employees are not paying any union dues.

Lost trademarks deemed to be

Generic (e.g., "aspirin" Bayer 1921, thermos, cornflakes, raisin bran, escalator, trampoline, cellophane)

Defense to Assault/Battery: Consent

Give permission, can be expressed or implied

Mechanic's Lien

Guarantees payment first to builders, contractors, or construction firms that build or repair structures and other stakeholders involved in a construction project, in the event of a liquidation.

In battery, how can touching not be direct?

Gun, rock

Close Corporations

Held by a limited number of shareholders and not publicly traded. Run by the shareholders and generally exempt from many requirements of other corporations. State-specific statutory entities created to relax corporate formalities in operation and to be less focused on taxation.

Commerce Department

Helps manage the United States businesses and economy. EPA and Commerce department must designate critical habitats for each endangered species.

Georgia v. Randolph

Husband / Wife -- can't give consent for areas where normally they would not have unrestricted access.

S Corporation

IRS will allow closely held corporations that meet the requirements to avoid double taxation and still have limited liability. Profits are passed directly to its shareholders and the shareholders pay personal income taxes on these distributions. The Corporation itself does not pay tax and thereby avoids double taxation. To qualify, the following qualifications must be present: (1) The corporation must be a domestic (i.e., organized under the laws of the states of the laws of the states or territories of the U.S.) corporation, (2) the shareholders can only be individuals with certain very limited exceptions like estates or some trusts, (3) the corporation can have no more than 100 shareholders and all of the shareholders must agree on the S Corporation status, (4) there can only be one class of shareholders, (5) shareholders must not be non-resident aliens.

Patents do not include

Ideas or suggestions

Majority Rule Basis

If a majority of employees vote for the union in a NLRB labor representation election, it comes to power and is the employee's exclusive or only representative. If less than a majority of employees in the given unit vote for the union, its election effort is a complete loss and it is prohibited from even attempting to organize the given employees again for at least a year. No legal provision for minority unions.

Private Law

If the controversy is based on rights and duties between litigants who are private parties

Harrison v. Williams Dental Group, P.C.:

Implied V. Express Contract --Texas case law: an express contract arises when its terms are stated by the parties --Texas case law refers to an implied contract as one that can arise from the acts and conduct of the parties

Shay's Rebellion

In 1786 Daniel Shay, farmer from Western Massachusetts, led approximately 1,500 men on a raid in Springfield, Massachusetts to obtain weapons from their arsenal and then led armed attacks on the courthouses to prevent the creditors from foreclosing on the farms. Neither the central or state governments would raise a militia to stop Shay, eventually stopped by a privately paid force which ended Shay's rebellion on February 4, 1787

Federal Law

Includes all laws developed under the authority of the Constitution by Congress, the President, or federal regulations; the most important constitutional provision concerning the federal government's regulation of business is the Commerce Clause (Interstate Commerce Clause), also includes regulations created by federal agencies under the authority delegated to them by Congress

State Law

Includes ordinances passed by local governments, laws passed by state legislatures, and the laws created by stage regulatory agencies, differs from state to state

Trade Dress

Infringer steals the entire inherent distinctive look of a competitor (e.g., Two Pesos and Taco Cabana, 1992)

Battery

Intentional act of physical contact or offensive touching of someone without his or her permission

Assault

Intentional act placing a person in fear or apprehension of immediate bodily harm or offensive contact

Intentional Infliction of Mental Distress

Intentional conduct by a person that is so outrageous that creates severe mental or emotional distress in another

False Imprisonment

Intentional holding or detaining of a person within boundaries if the person is harmed by such detention

What was the first Regulatory Agency?

Interstate Commerce Commission (ICC), 1887

Invasion of Privacy

Invasion of a person's right to solitude, an unwarranted public exposure

Who can register for a patent?

Inventor or agent

Equitable Remedy

Involve a court order to do, or not do, something; generally only available where the monetary (legal) damage is too late or does no good, try to avoid the harm and legal remedies pay for the damages after the harm has been done

Galella v. Onassis

Involved freelance photographer Ron Galella and former first lady Jacqueline Kennedy Onassis. New York court issues injunction on basis of harassment ordering Galella to stay within 25 feet of Onassis.

Labor Arbitration

Involves having an outside third party such as a minister, professor, etc. hear evidence regarding the grievance and then rendering a binding decision.

Austin v. Michigan Chamber of Commerce

Issue: does the Michigan Campaign Finance Act violate the 1st and 14th amendments? Outcome: No, the law is still in place and doesn't allow for corporations to use treasury money to support a candidate because corporations can influence the public

Certificate of Dissolution

Issued by a state official once the Articles of Dissolution are filed; terminates the LLC.

Judicial Activism

Judges are free to "interpret" the law and do not always follow legislative intent, judge(s) may feel that they can improve on the law or just may disagree with the legislative body, can lead to a judge changing the legislative intent; "judges being legislators in black robes"

Common Law

Judges create much of the law in the United States by interpreting the law and applying the law by determining the facts

Quasi in rem Jurisdiction

Jurisdiction that allows a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching property of the defendant located in another state. Jurisdiction over real or personal property when the lawsuit has to do with personal liabilities not directly associated with the property.

Who determines compensatory damages?

Jury in trial or judge if no jury

Chapter 8

Labor-Management Relations

Strict Liability Tort

Liability without fault A civil wrong that occurs when a defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes. The defendant is liable for the plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent.

Nobility Homes of Texas v Shivers (1977)

Limited "Privity of Contract" (only Parties in Contract can enforce the Terms). Not required even in Express Warranties. Otherwise "sham" corporations would be set up to insulate people from gross negligence of products Implied Warranty of Merchantability [Texas Common Law] --Defines seller as "a person who sells or contracts to sell goods" --> That could mean anyone --If privity still allowed, then corporations would simply set up sham corporations to sell the goods they manufactured to avoid liability

Jim Crow Laws

Limited rights of blacks. Literacy tests, grandfather clauses and poll taxes limited black voting rights

Judgment n.o.v.

Literally, a judgment non obstante verdicto, which translates as judgment notwithstanding the verdict; it is a judge's decision to decide a case contrary to the verdict of the jury.

Chapter 3

Litigation and Alternate Dispute Resolution

Chapter 3

Litigation and Alternate Dispute Resolution:

Industry has the greatest interest in regulation and is better represented by

Lobbyists, Expert Testimony

Urban Homestead

Located within the physical or jurisdictional limits of a municipality or within a planned subdivision or development; and served by police and/or fire protection; and at least three of the following services are provided by a municipality or under contract to a municipality: electric, natural gas, sewer, storm sewer, water.

Trial Court

Lowest rung on the ladder, where the case begins. Develops the record of the case that will become the foundation for the appeal of the case to the higher court if necessary, where lawsuits are generally initiated Federal Court only has one general trial court, Texas state judicial has six

NLRB v. Mackay Radio & Telegraph Co.

Makes it clear that the employer is free to hire permanent or temporary replacement workers/striker replacements (called "scabs") for the striking workers

Social Insurance Theory

Manufacturer is better equipped than consumer to pay for damages since manufacturer can pass it on to the consumer

Arbitrary/Fanciful Trademark

Mark must bear no rational or logical relationship to the product it represents; word/words aren't related to product sold • when people combine generic images or make up their own unique word to reference a product/brand • ex: the Apple logo

Sindell v. Abbott Laboratories

Market Share Liability 1. DES case, problem was who made the DES 2. Several manufacturers, which manufacturer made pills that caused Plaintiff injuries? 3. No way to prove, sold under a generic name 4. Too much time passed 5. Inadequate record 6. Victims cannot prove who made drug 7. Market share liability says let the manufacturers share in the liability 8. If made 15% of the drug, pay 15% of the damages --DES drug case for women w/history of miscarriages --Problem: there were several manufacturers, could not prove who made the drug --> Market Share Liability let manufacturers share in liability --Pay % of the damages equal to % of product manufactured --Products MUST be identical no matter which manufacturer made them

Griswold v. Connecticut

Married couple wanted to get contraceptives; struck down a Connecticut law prohibiting the sale of contraceptives; established the right of privacy through the 4th and 9th amendment

Constitutional Convention of 1787

May 25, 1787, 55 representatives of 12 states met in Philadelphia to draft a new agreement to set forth the basic functions of a new government; document they eventually created is the Constitution of the United States of America, led by George Washington with James Madison regarded as the "author" of the Constitution

MCAT

Medical College Admission Test; a computer-based standardized examination for prospective medical students

Examples of Suggestive Trademarks

Microsoft, Citibank, Jaguar

Reasonably Accommodate

Modifying or adjusting a job application process or a work environment to enable a qualified individual with a disability to be considered for a job. Three categories of modifications/adjustments: (1) the job application process, (2) the work environment or the circumstances in which a job is customarily performed, (3) policies that set out the benefits and privileges of employment.

Garnishment

Money is legally withheld from your paycheck and sent to another party, legal process that instructs a third party to deduct payments directly form a debtor's wage or bank account.

Preponderance of the Evidence

More likely than not, standard for proving the defendant responsible/liable in civil courts

Federalist Papers

Most influential support in favor of adoption of the Constitution appeared in a series of newspaper articles written by James Madison, John Jay, and Alexander Hamilton. Often used as a guide by the courts in interpreting the Constitution

Why are Malicious Prosecution torts difficult to win?

Must win all lawsuits against you, then must prove that opposing party had no probable cause; must prove malicious conduct

NPDES

National Pollutant Discharge Elimination System (NPDES) is a provision of the Clean Water Act that prohibits discharge of pollutants into waters of the U.S. unless a special permit is issued by the EPA, a state, or a tribal government.

Duration of Copyright Protection

Normally author's lifetime + 70 years or Publisher: 95 years after pub. date, 120 years after day of creation (lesser of 2) Sonny Bono Copyright Extension Act 1998 extended all by 20 years (ends in 2018)

Can you use deadly force to protect property in a self-defense claim for assault/battery?

No

Does the government enforce patent infringement?

No, all patent lawsuits are private

Is giving notice of a copyright required?

No, but recommended (stops the infringer claiming the defense of innocence)

Permanent Nuisance

Nuisance is permanent and thus fixed, continues indefinitely A nuisance which cannot be abated at a reasonable cost and by reasonable means.

Unreasonable Search & Seizure

Obtaining evidence in a haphazard or random manner, a practice prohibited by the 4th amendment; probable cause and a search warrant are required for this to be legal

Oral Argument

Occurs before the appeals court where both parties have a limited time, usually 30 minutes each, to orally persuade the appellate judges that their position is correct.

Complete Performance

Occurs when all aspects of parties' duties under contract are carried out perfectly Contract performance that occurs when all aspects of the parties' duties under the contract are carried out perfectly.

Substantial Performance:

Occurs when one party fulfills enough of its contract obligations to warrant payment

Sole Proprietorship

Oldest and simplest business entity. No formalities for creation assuming you have the legal right to open that certain type of business, which can include certain degrees, permits, and other requirements. Once created, no special rules or regulations to follow on operation. Owner is the business and vice versa. Major disadvantages are unlimited liability (i.e., the sole proprietor will be personally responsible for all of the debts of the business), difficulty of selling the business, and difficulty in raising capital. Very difficult to get investors, limited to the amount of credit that one owner can have and this can make it difficult for the owner to borrow money. Owner claims all of the income and/or loss on their personal tax forms.

Employee

One employed by another usually for wages or salary and in a position below the executive level

Employer

One that employs or makes use of something or somebody; a person or company that provides a job paying wages or a salary to one or more people

Administrative Law Judge (ALJ)

One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.

Panel Decision

Opinion issued by a panel of three judges in the federal Court of Appeals. Occasionally enbanc.

Consumer-Advocate Groups

Opposing interest groups to Big Business Individuals and groups who actively work to protect consumer rights, often by investigating advertising complaints received from the public and those that grow out of their own research. Submit complaints about ads to appropriate government agencies investigate advertising complaints received from the public and those that grow out of their own research

Depositions

Oral questions asked of parties and witnesses under oath.

Slander

Oral, transitory, or unrecorded speech the action or crime of making a false spoken statement damaging to a person's reputation.

Writ of Certiorari

Order by the Supreme Court directing a lower court to send up the records of a case for review

Articles of Confederation

Organized the American colonies during and after the Revolutionary War, idealistic but wholly dysfunctional document; led to domination by the states and a very weak central (national) government which led to the Chaotic Period (1781-1789). States were viewed as independent entities that had joined together in a federation to achieve common goals as a band of friendly, mutually existing neighbors; states treated each other in an openly hostile manner. Central government did not have power to tax, relied on voluntary contributions from the states and was unable to finance an effective military force to defend the federation of friendly, mutually existing neighbors

In Texas intentional infliction of mental distress can only be used when...

Other torts do not suffice

Norris-LaGuardia Act of 1932

Outlawed "yellow dog contracts" specifically noting that free market freedom of contract between employers and employees no longer existed, an employee would sign just about anything to get a job in an economic environment of 30% unemployment. Made it much more difficult for employers to get court orders or injunctions stopping labor union activities. Helped labor unions by making it more difficult for employers to stop their activities; did not directly sanction the development of labor unions in the U.S.

Regulation E

Outlines rules for electronic funds transfers and provides guidelines for issuers and sellers of debit cards, enacted to protect consumers. Includes ATMs, point-of-sale transactions, and automated clearing house (ACH) systems.

Katzenbach v. McClung

Owner of a restaurant refused to seat blacks in violation of the Civil Rights Act of 1964. Result: Discrimination in restaurants posed significant burdens on interstate flow of food and movement of products. - commerce clause The U.S. Supreme Court held that Congress had the power, under the Commerce Clause, to ban racial segregation in the restaurant.

How can Patents be applied for at the USPTO?

Paper mailing or electronic filing (preferred)

After Acquired Property

Personal or real property acquired by a debtor after he/she has signed a security agreement that secures the debt with all his/her property. Property which a debtor acquires after the execution of a mortgage or other form of indebtedness and which secures the indebtedness.

False Imprisonment: Confinement

Physical restraint, using threatening force to restrain, force or threat against person's property, retain someone in custody when supposed to be released

50% Rule

Plaintiff recovers only if liability is less than 50% in negligence case

Eminent Domain

Power of a government to take private property for public use.

Concurrent Power

Powers held jointly by the national and state governments.

Implied Powers Clause

Powers not mentioned specifically in the Constitution as belonging to Congress but inferred as necessary and proper for carrying out the enumerated powers.; "Necessary and Proper", "Elastic Clause"; found immediately after the enumerated powers in Article I of the Constitution

Executive Order

President can independently create laws by issuing executive orders and controlling the policies of the executive branch; law-making authority of the President is limited by the Constitution

Stare Decisis

Previously decided cases should be followed unless there is a good, legal reason to change the previous decision

Short-Swing Profits

Profits earned within a short period of time, made by a corporate insider within a six-month period. Made on the purchase and sale of company. SEC regulation that requires company insiders to return any profits made from the purchase and sale of company stock if both transactions if both transactions occur within a six-month period. Rule was implemented to prevent insiders, who have greater access to material company information, from taking advantage of information for the purpose of making short-term profits. Comes from Section 16(b) of the Securities Exchange Act of 1934.

NLRA, Section 7 has been interpret to:

Protect the rights of non-unionized employees to engage in certain kinds of concerted or collective activities

4th Amendment

Protection against Unreasonable Search and Seizure

Business Judgement Rule

Protects companies from frivolous lawsuits by assuming that, unless proved otherwise, management is acting in the interests of shareholders; unless it's clear that directors have violated the law or acted against the interests of shareholders, courts will not question their decisions. Boards are presumed to act in "good faith", should be allowed to make risky decisions without fear of prosecution by shareholders who might object. Assumed it is unreasonable to expect managers to make optimal decisions all the time; if directors are acting rationally and in good faith, it will not take action against them.

Regulation Z

Protects consumers from misleading practices by the credit industry and provides them with reliable information about the costs of credit. Applies to home mortgages, home equity lines of credit, reverse mortgages, credit cards, installment loans, and certain kinds of student loans; established as part of the Consumer Credit Protection Act of 1968. Major goals were to provide consumers with better information about the true costs of credit and to protect them from certain misleading practices by the lending industry; lenders must disclose interest rates in writing, give borrowers the chance to cancel certain types of loans within a specified period, use clear language about loan and credit terms, and respond to complaints.

Compensatory Damages

Purpose is to make the innocent party whole again by covering: past and future medical expenses, past and future economic loss, past and future pain and suffering; determined by a jury in trial or judge if no jury

Railway Labor Act

Railroad employers are excluded from the NLRA and covered by a different law called the Railway Labor Act, which makes it more difficult for unions to go on strike. Airlines today are covered under the Railway Labor Act

Ratification

Ratification process for the Constitution required that for the ratification of the Constitution to occur it would take nine states to ratify the Constitution or three-fourths of the states (Articles of Confederation required unanimous vote of all 13 states)

RACT

Reasonably Available Control Technology, is required on existing sources in areas that are not meeting national ambient air quality standards (i.e., non-attainment areas).

Copyright Act of 1790

Received an "economic boost" Authors and publishers had exclusive rights for their work for a period of 14 years (renewable for another 14 years) Royalty fees to the copyright holder Exclusively national government, no state involvement in copyright

Quid Pro Quo Sexual Harassment

Recognized under Title VII of the Civil Rights Act of 1964. Occurs when a supervisor or person of higher rank requires an employee to perform sexual favors in order to keep their job or receive some type of job benefit. Includes not only direct verbal request, but also non-verbal communication and physical conduct.

Comparable Worth

Refers to being paid similarly for jobs with comparable knowledge, skills, and abilities. Term for a reform effort to pay different job titles the same wages based on their value to their employer regardless of the gender of those working in such titles; also known as "pay equity".

Duty of Due Care

Refers to the effort made by an ordinarily prudent or reasonable party to avoid harm to another, taking the circumstances into account. Refers to the level of judgment, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances.

Separation of Ownership and Control

Refers to the phenomenon associated with publicly held business corporations in which the shareholders possess little or no direct control over management decisions. Generally attributed to collective action problems associated with dispersed share ownership; permits hierarchical decision making which is superior to the market.

Market for Corporate Control

Refers to the process by which ownership and control of companies is transferred from one group of investors and managers to another. The lower the stock price, relative to what it could be with more efficient management, the more attractive the take-over becomes to those who believe that they can manage the company more efficiently. And the potential return from the successful takeover and revitalization of a poorly run company can be enormous.

Rejection:

Refusal by the offeree

National Labor Relations Board

Regulates labor-management relations in all industries, New Deal Agency an independent agency of the United States government charged with mediating disputes between management and labor unions

Regulation B

Regulation intended to prevent applicants from being discriminated against in any aspect of a credit transaction; outlines the rules that lenders must adhere to when obtaining and processing credit transaction. Prohibits discrimination on the basis of age, gender, ethnicity, nationality, or marital status. Creditors that fail to comply will be held liable for punitive damages up to $10,000 in individual actions; for class actions, the creditor could be dealt a penalty of the lesser of $500,000 or 1% of the creditor's net worth.

Chapter 14

Regulation of the Environment

Limited Liability Partnerships (LLP)

Relatively new form of business entity, first state was Texas in 1991. A form of business entity first used only by professionals, but now open to almost any type of business but still dominated by attorneys and accountants since it was tailor-made for them. Created to avoid some earlier problems of LLCs, organization more like a partnership where it clearly limits the personal liability of the partners. Normally partners are not responsible for the errors, omissions, negligence, incompetence, or malfeasance of their fellow partners arising in tort, contract or otherwise; partners still sometimes have potential liability if another partner is directly involved in a wrongful activity or had notice or knowledge of the wrongful activity and failed to take reasonable steps to correct it. Created by registering with the appropriate state official, must file annual reports with the state to maintain its status; fee must be paid each year by each partner but the partners do not have to be listed on the registration as were the organizers in the LLC. Separate entity and can be sued for the actions of one or more of its partners; state law normally requires the partnership to maintain liability insurance or have separate funds available for that purpose, amount can be in the seven figures. Differs from a limited partnership in that ALL the partners are given limited liability, all partners can take part in the management without incurring unlimited liability.

Cantwell v. Connecticut

Religious speech is protected, even from door to door, and cannot be regulated, as it would violate the 1st and 14th amendments

Challenge for Cause

Removal of a prospective juror by showing that he or she has some bias or some other legal disability. The number of such challenges available to attorneys is unlimited. A voir dire challenge for which an attorney states the reason why a prospective juror should not be included on the jury.

Executive Order 11246

Requires qualifying contractors or subcontractors that work with the government to avoid discrimination of their employees while making decisions. To qualify, contractors must have at least 50 employees and contracts of %50,000 or more.

Removal Doctrine

Right to have a state suit removed to a federal court if it involves more than $75000 and residents of more than one state -Utilized by Defendant when there is diversity of citizenship in state court -Can remove case the Federal District Court

Rumsfeld v. Forum for Academic and Institutional

SC said that congress could require law schools to provide equal access to military recruiters without violating the school's freedom of speech

Hester v. United States

Searches and Seizure Open Fields Doctrine codified and upheld. This meant that a person could not expect privacy in an open field, and police could search said field despite "No Trespassing" Signs.

Unfair Labor Practice (ULP)

Section 8 of the NLRA makes it unlawful for an employer to "interfere with, restrain, or coerce employees" in the exercise of these rights (i.e., to form labor unions and engage in collective bargaining). Section 8(a)(3) specifically states that employers cannot discriminate in hiring or rewarding employees based on their union membership/affiliation, while Section 8(a)(5) says it's an "ulp" for an employer to refuse to bargain collectively with duly chosen employee representatives. Clearly unlawful for an employer to directly tell an employee that he or she is being fired for union activity; also, explicitly unlawful for an employer to completely refuse to bargain with employee representatives (e.g., a duly elected labor union)

Off-Duty Conduct Statutes

Some states prevent Employer firing Employee for LEGAL activities outside of work (Montana, Colorado, New York, North Dakota)

Lessor

Someone who grants a lease, the owner of an asset that is leased under an agreement in which they receive one-time or periodic payments in return for the use of the asset

Bona Fide Purchaser

Someone who obtains property for value without notice of any problems with its title (e.g., competing claims of ownership)

Guarantor

Someone who promises to fulfill another party's obligation if the other party fails to perform. Liability does not arise until the debtor defaults (different from surety)

Beyond a Reasonable Doubt

Standard of proof necessary in criminal court, much higher than civil court

SIP

State Implementation Plan is a U.S. Plan administered by the Environment Protection Agency (EPA) in compliance with the federal Clean Air Act. The SIP consists of narrative, rules, technical documentation, and agreements that an individual state will use to clean up polluted areas. EPA approves state plans for the establishment, regulation, and enforcement of air pollution standards

Defense to Defamation: Conditional or Qualified Privilege

Statement made in good faith with proper motives; can be no malice, statement must be made to protect some recognized interest

Defenses to Defamation: Constitutional Privileges

Statements made by legislators and other public officials, type of absolute privilege

Pleadings

Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.

Judicial Interpretation

Statutes are typically written in general terms giving the courts the flexibility to respond to unforeseen circumstances and to adapt to changing conditions over times

Novation:

The substitution, by agreement, of a new contract for an old one, with the rights under the old one being terminated. A three-way agreement in which the obligor transfers all rights and duties to a third party.

Cunningham v. MacNeal Memorial Hospital

Strict Liability Strict Liability Elements Codified 1) Sale Occurred, with Identified Seller and Buyer Relationship 2) Product was Defective, and Contributed to Harm 3) Unreasonable Danger Present 4) Product Defect present before leaving Manufacturer Hospital successfully sued for infecting Patient with Hepatitis, despite not being able to prevent it by screening (IV fluids administered). Product (IV Fluid) was unreasonably dangerous

Rylands v Fletcher (1868)

Strict Liability 1. Defendant built reservoir 2. Reservoir broke into shaft of abandoned coal mine 3. Flooded Plaintiff's active mine 4. Defendant did not know of Plaintiff's mine 5. Defendant still liable Brought about Strict Liability in Tort: -Defendant built Reservoir which broke into shaft of abandoned coal mine then flooding the plaintiff's active mine, defendant did not know of mine but was still liable -defendants employed independent contractors to build a reservoir on their land -contractors found disused mines that had been partially filled in -decided not to fill them properly and proceeded to fill the reservoir with water -water flooded through the mine shafts into the plaintiff's mines on the adjoining property PRINCIPLE -plaintiff secured a verdict at Liverpool Assizes -Court of Exchequer Chamber held the defendant liable and the HOL affirmed their decision

Separate But Equal

Supreme Court doctrine established in the case of Plessy v. Ferguson. Allowed state-required racial segregation in places of public accommodation as long as the facilities were equal.

Stromberg v. California

Supreme Court found a states "Red Flag Law" unconstitutional because it violated the liberties protected by the 14th Amendment, to include a protection of the 1st Amendment, in this case symbolic speech. (Communist)

Miranda v. Arizona

Supreme Court held that criminal suspects must be informed of their right to consult with an attorney and of their right against self-incrimination prior to questioning by police. 1966 Supreme Court decision that sets guidelines for police questioning of accused persons to protect them against self-incrimination and to protect their right to counsel.

Caperton v. Massey Coal Company

Supreme Court ruled that elected judges should not rule in cases involving their major backers, Court held that Justice Benjamin (West Virginia) failed to recuse himself and violated the plaintiff's due process under the fourteenth amendment Elected judges should not rule on cases involving their major backers

Shearson/American Express v. McMahon

Supreme Court ruled that if the parties to a law suit had agreed, prior to the dispute arising, to go to arbitration rather than litigation, then the Federal Arbitration Act required them to go to arbitration Arbitration If Parties involved in a Lawsuit agreed, prior to the Dispute Arising, to go to Arbitration rather than Litigation, then the Federal Arbitration Act required them to go to Arbitration.

Maine v. Taylor

Supreme Court ruled that state law prohibiting the importation of bait from outside Maine was constitutional because the state's economy was largely dependent on the fishing industry

City of Dallas v. Stewart

Texas court case that determined whether or not the city has the right to demolish property that was considered a public nuisance area and send the demolition bill to the property owner; ruled 5-4 that the city had to reimburse the owner Attempt to strike balance between Owner's Right of Property and a City's Prerogative to Remove Blight and Demolish "eyesore" buildings.

Ishin Speed Sport, Inc. v. Rutherford:

Texas courts say that the "offer and acceptance must be in strict compliance with offer's terms and are essential to creation of a binding contract" The Offer and Acceptance must be in strict compliance with the offer's terms and are essential to creation of a binding contract

Spacek v. Maritime Ass'n:

Texas defines Illusory Promise as when it created no obligation whatsoever on part of purported promisor --5th Circuit case Texas courts define illusory promises as "when it creates no obligation whatsoever on part of purported promisor"

TMC Worldwide, L.P. v. Gray:

Texas requires legality & capacity [and consideration] to have a legally enforceable contract --Consideration is a present exchange bargained for in return for a promise and consists of either a benefit to the promisor or detriment to the promisee

Buddy L, Inc. v. General Trailer Co., Inc.:

Texas: presumption exists in law that one possesses sufficient mental capacity to enter into contracts Texas states that, "presumption exist in law that one possesses sufficient mental capacity to enter in to contracts"

Fiduciary Duty:

That duty owed by an agent to act in the highest good faith toward the principal and not to obtain any advantage over the latter by the slightest misrepresentation, concealment, duress or pressure.

Barron v. Baltimore

The 1833 Supreme Court decision holding that the Bill of Rights restrained only the national government, not the states and cities.

Gitlow v. New York

The 1925 Supreme Court decision holding that freedoms of press and speech are "fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states" as well as by the federal government.

Roe v. Wade

The 1973 Supreme Court decision holding that a state ban on all abortions was unconstitutional. The decision forbade state control over abortions during the first trimester of pregnancy, permitted states to limit abortions to protect the mother's health in the second trimester, and permitted states to protect the fetus during the third trimester.

Zelman v. Simmons-Harris

The 2002 Supreme Court decision that upheld a state providing families with vouchers that could be used to pay for tuition at religious schools. Public money can be used to send disadvantaged children to religious schools in tuition voucher programs.

U.S. Equal Employment & Opportunity Commission

The agency responsible for enforcing federal laws regarding discrimination or harassment against a job applicant or an employee in the U.S. Formed by Congress to enforce Title VII of the Civil Rights Act of 1964.

Supreme Law

The Constitution is the supreme law of the land and all laws must be found to be constitutional or they can't exist or be enforced

Federalism

The Constitution separates governing among the various branches of the federal government and the states. Power is split between a central governing body and local governments; local governments recognize the sovereignty of a central government and surrender certain powers to it, retaining other powers for themselves; federal government's scope of activity is limited by the powers granted in the Constitution, all other powers are reserved to the states unless prohibited by the Constitution, as per the 10th Amendment

McDonald v. City of Chicago

The Court held that the right of an individual to "keep and bear arms" protected by the 2nd Amendment is incorporated by the Due Process Clause of the 14th Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.

Hughes v. Oklahoma

The Court held that the state law, which prohibited transportation of minnows outside the state when the minnows were caught in the state, was a violation of the dormant commerce clause because the real purpose of the statute was to try to make out-of-staters purchase the minnows in the state.

Virginia v. Black

The Court ruled that cross burning, due to its historical ties to racial fear and intimidation, is not protected speech.

Proxy Contests

The action of a group of shareholders joining forces, in a bid to gather enough shareholder proxies to win a corporate vote. Action is mainly used in corporate takeovers, where outside acquirers attempt to convince existing shareholders to vote out some or all of a company's senior management, to make it easier to seize control over the organization.

Territorial Jurisdiction

The actual geographic area over which the court has authority. the power of criminal courts to hear cases involving crimes committed within their territory

Executory:

a term applied to a contract in which not all of the terms have been fully performed

Patent Infringement Appeals go to:

The Federal Court of Appeals for the Federal Court in Washington DC

National Labor Relations Board (NLRB)

The NLRA mandated the creation of an administrative agency to administer the law, the NLRB. Members are appointed by the President and confirmed by the U.S. Senate. Has broad administrative powers under the NLRA. Its General Counsel's office prosecutes alleged violations under the law, while the members of the Board function somewhat like a court hearing and deciding cases involving alleged violations; appeals from NLRB decisions are made directly to the federal courts of appeals throughout the country

Patents and Copyrights are protected by...

The U.S. Constitution, Article I, Section 8

Environmental Protection Agency (EPA)

The US federal agency with a mission to protect human health and the environment. an independent federal agency established to coordinate programs aimed at reducing pollution and protecting the environment

Environmental Protection Agency (EPA)

The US federal agency with a mission to protect human health and the environment. An independent federal agency established to coordinate programs aimed at reducing pollution and protecting the environment

Principal:

The amount of money borrowed

Annual Percentage Rate

The annual rate charged for borrowing or earned through an investment. Expressed as a percentage (i.e., interest rate) that represents the actual yearly cost of funds over the term of a loan. Does not take into account compounding.

Apparent Authority

The appearance or the assumption of authority based on the actions, words, or deeds of the principal or because of circumstances the principal created.

Patents are only available to

The applicant who must be the inventor/discoverer or his agent

Insider Trading

The buying or selling of a publicly traded company's stock by someone who has non-public, material information about that stock. Can be illegal or legal depending on when the insider makes the trade, illegal when the material information is still nonpublic. Defined by the SEC as the "buying or selling a security, in breach of a fiduciary duty or other relationship of trust and confidence, on the basis of material, nonpublic information about the security.

Law

The collection of rules and regulations that determines how the government will treat its citizens, as well as how its citizens treat the government, how citizens treat each other, and the enforcement thereof; sets the parameters of acceptable/unacceptable behavior between citizens and between citizens and the government

Who do Compulsory Licensing Royalties go to?

The copyright owner, not the performer

Securities Act of 1933

The first major federal law regulating the securities industry. It requires firms issuing new stock in a public offering to file a registration statement with the SEC.

Venue

The geographical district in which an action is tried and from which the jury is selected. The geographic district in which a legal action is tried and from which the jury is selected.

Bargaining Unit

The group of employees for whom a labor union negotiates a collective bargaining agreement. Can be whole business, can be a division of that business (e.g., just the pharmacy workers in a store with several divisions like a grocery store)

Regulatory Role

The law directs and standardizes activities that would otherwise be considered purely private interactions of individuals; involves government intervention, becomes an active third party by regulating the activity and is a potent force in the legal environment of business, justified on the grounds that society has some stake in the outcome of the regulated activity and the well-being of society can and will be improved through government involvement

Dispute Resolution Role

The law gives people and business entities a forum to settle their differences whether it be through the enforcement of some legal issue (e.g., enforcement of contracts, recognition of private property rights in eminent domain); settles differences between two or more parties

Civil Law

The law that provides remedies for individuals or entities that have been wronged by the other individual or entity such as in crimes; primary purpose is reimbursement or restitution and not punishment as in criminal law

Bankruptcy

The legal proceeding involving a person or business that is unable to repay outstanding debts, allowing them freedom from their debts while simultaneously providing creditors an opportunity for repayment. Begins with a petition filed by the debtor or on behalf of creditors.

Standing to Sue

The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. the requirement that plaintiffs have a serious interest in a case, which depends on whether they have sustained or are likely to sustain a direct and substantial injury from a party or an action of government

Minimum Wage

The lowest wage per hour that a worker may be paid, as mandated by federal law; legally mandated price floor on hourly wages, below which non-exempt workers may not be offered or accept a job. Individual states, cities, and localities may pass different requirements.

Corporate Managers

The members of the top-management team whose responsibility is to set strategy for the corporation as a whole.

Federalism

The national government is given powers by the Constitution while reserving other powers to the states; both the national (federal) and state governments can create law

if a work is for hire, who does the copyright belong to?

The one paying for the work; work prepared by an employee in the course of his employment belongs to the employer, can also be created by written contract

Wagner Act of 1935

The original National Labor Relations Act (NLRA). Made labor unions clearly lawful in the United States, adopted a governmental policy of encouraging workers to join unions and engage in collective bargaining. Called the "Magna Carta" of the American Labor Movement.

Plaintiff

The party that begins the civil lawsuit

Defendant

The party that is sued in a civil lawsuit

Organizer

The people who organize the LLC and can be future members or professionals hired to organize the LLC.

Complaint

The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

Mitigation:

The policy of constructing or creating man-made habitats, such as wetlands, to replace those lost to development the action of reducing the severity, seriousness, or painfulness of something

Checks and Balances

The power of each branch limited by certain checks and balances from the other branches; challenge was to create a government that was strong enough, yet not too strong. Solution devised was to separate the powers of the government into specific functions that together represented a strong central government but would serve to operate as a system of checks and balances

Police Powers

The power of the state to place restraints on the personal freedom and property rights of persons for the protection of public safety, health, and morals, or the promotion of the public convenience and general prosperity, are reserved to the individual states; specified in the Tenth Amendment of the U.S. Constitution; state legislatures have passed comprehensive statutes governing such subjects as corporations, commercial transactions, criminal law, motor vehicle law, and franchising contracts

Judicial Review

The power to declare an act of Congress, or the President, unconstitutional and thus unenforceable. In exercising this power, there is traditionally a strong presumption by the court that a statute is constitutional

10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Duty of Due Diligence

The process of conducting an intensive investigation of a corporation as one of the first steps in a pending merger or acquisition.

Winding Up

The process of dissolving a company. A company ceases to do business as usual; sole purpose is to sell off stock, pay off creditors, and distribute any remaining assets to partners or shareholders. Regulated by corporate laws and a company's articles of association or partnership agreements. Can be compulsory or voluntary.

Slander of Title

The publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner. False statement about the ownership of property

General Agency:

The relationship of a broker, managing broker, or leasing agent with a sponsoring broker. A principal gives an agent the power to bind him in a particular trade or business

Landlord's Lien

The right of a landlord to sell abandoned personal property left on rented or leased premises by a former tenant to cover unpaid rent or damages to the property

Peremptory Challenge

The right of a lawyer during jury selection to have a potential juror dismissed without having to give a reason. a defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.

Priority

The right to collect before other creditors is given to taxing authorities, judgment holders, secured creditors, bankruptcy trustees, and attorneys.

Attachment

The seizing of money or property prior to getting a judgment in court, in contemplation that the plaintiff will win at trial and will require the money or property to cover the judgment. Can be made only after a hearing before a judge in which both sides can argue the danger that the party being sued is likely to leave the area or otherwise avoid probably payment

Self-Incrimination

The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court. The Fifth Amendment forbids self-incrimination.

Probable Cause

The situation occurring when the police have reason to believe that a person should be arrested. In making the arrest, police are allowed legally to search for and seize incriminating evidence.

Reasonable Person Standard

The standard of behavior expected of a hypothetical "reasonable person." The standard against which negligence is measured and that must be observed to avoid liability for negligence.

Corporate Governance

The system of rules, practices, and processes by which a firm is directed and controlled; essentially involves balancing the interests of a company's many stakeholders. Provides the framework for attaining a company's objectives, encompasses practically every sphere of management from action plans and internal controls to performance measurement and corporate disclosure. Refers specifically to the set of rules, controls, policies, and resolutions put in place to dictate corporate behavior. Board of directors is the primary influencing force.

Business Unionism

The theory and practice of trade unionism especially associated with Samuel Gompers that is directed toward the attainment of practical limited material advantages (e.g., better wages, hours, and working conditions) through collective bargaining within the framework of capitalism rather than toward the achievement of extensive social changes or reforms

Most large verdicts against businesses and insurance companies are reduced by...

The trial judge, appellate judges/justices

Impeach

To formally charge a public official with misconduct in office To accuse government officials of misconduct in office

Disparate Treatment

Treatment of an individual that is less favorable than treatment of others, for a discriminatory purpose. An employee was treated differently than other employees similarly situated, the different treatment must be based on the individual's inclusion in a protected class.

Appeasement

Try to limit negative impact to the injury itself; give the injured party a legal means to right the wrong, hopefully prevents physical retaliation

NAAQS

Two types: 1) Primary standards: set limits to protect public health, including the health of "sensitive" populations such as asthmatics, children, and the elderly. 2) Secondary standards: set limits to protect public welfare, including protection against visibility impairment, damage to animals, crops, vegetation, and buildings.

Professional Corporation (PC)

Type of closely held corporation utilized to some degree to take advantage of the corporate limited liability; normally used by professionals (e.g., attorneys, doctors, dentists, accountants). The major advantage has to do with limited liability; not allowed to avoid liability for malpractice of other professionals in the organization but the shareholders can be insulated from liability based on the tortious acts of their fellow professionals if malpractice is not involved and from liabilities arising from the contractual obligations of their fellow professionals.

Limited Liability

Type of legal structure for an organization where a corporate loss will not exceed the amount invested.

Limited Liability Limited Partnership (LLLP)

Type of limited partnership that tries to combine the LP form with the LLP form. The general partner has the same liability as the limited partner; general partner has limited liability. Use has been rather limited and for the most part untested.

Clean Air Act

U.S. federal law intended to reduce air pollution and protect air quality. The act—which underwent major revisions in 1990 and 2003—deals with ambient air pollution (that which is present in the open air) as well as source-specific air pollution (that which can be traced to identifiable sources, such as factories and automobiles). The Clean Air Act sets standards for air quality that limit the amount of various pollutants to specified levels. The Clean Air Act also sets deadlines for governments and industries to meet the standards. The federal Environmental Protection Agency (EPA) is ultimately responsible for establishing standards and enforcing the Clean Air Act, although much of the daily business of fighting air pollution takes place at the state and local levels.

Patents must be registered with...

US Patent and Trademark Office (USPTO)

Agency in charge of Trademarks/Service Marks

USPTO

Diversity of Citizenship

Under Article III, Section 2, of the Constitution, a basis for federal court jurisdiction over a lawsuit between (1) citizens of different states, (2) a foreign country and citizens of a state or of different states, or (3) citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal court can take jurisdiction in such cases. The condition that exists when the parties to a lawsuit are citizens of different states, or when the parties are citizens of a U.S. state and citizens or the government of a foreign country. Diversity of citizenship can provide a basis for federal jurisdiction.

Harris v. Mickel:

Under Texas law, once the offer is rejected, it is thereby terminated and consequently it cannot be accepted Rejection Offers that are initially Rejected cannot be Resurrected and subsequently Accepted

Company Unions

Unions essentially run by the employer; employers would force employees interested in unions into company unions. The NLRA in Section 8(a)(2) makes it unlawful for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it"

Which court hears patent appeals?

United States Court of Appeals for the Federal Circuit in Washington DC

How can fear be legitimate even if the threat cannot be carried out?

Unloaded gun, toy gun that looked real

Sexual Harassment

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when either: (1) the conduct is made as a term or condition of an individual's employment, (2) the acceptance or refusal of such conduct is used as the basis or a factor in decisions affecting employment, (3) the conduct unreasonably impacts an individual's employment or creates an intimidating, hostile, or offensive environment. Includes requests for sexual favors, sexual advances or other sexual conduct when (1) submission is either explicitly or implicitly affecting employment decisions, (2) the behavior is sufficiently severe or pervasive as to create an intimidating, hostile, or repugnant environment, (3) the behavior persists despite objection by the person to whom the conduct is directed.

Manager-Managed

Upon creation of the LLC, the organizers choose to have managers. Designate one or more persons who may or may not be members as officers to do whatever the managers direct them to do as long as it is within the parameters of the operating agreement and applicable state law since they have fiduciary duty to the owners of the LLC. Managers are the agents for the LLC, members no longer have the responsibility/right to govern the LLC. Can be members or nonmembers; does not have to be a legal "person", can be a corporation or another LLC.

GreenPeace

Uses nonviolent, creative confrontation to expose global environmental problems and force solutions. An international organization that works for environmental conservation and the preservation of endangered species

Valid:

Well-founded on evidence and corresponds accurately to the real world.

Judge-Made Law

What common law is often referred to as since it is created by the court

Precedent

When a court rules upon the facts of a particular controversy, it is said to be making a ruling and setting precedent which is the established answer to that set of facts; normally an appellate court is the only type of court that can create precedent; When the same facts appear before the court again, it normally follows the doctrine of stare decisis and rules in the same way following prior precedent; judge does not have to follow precedent and can change the precedent by showing good legal reasoning

Duty of Fair Representation

When a labor union wins an NLRB representation election in a given bargaining unit it then represents ALL the employees in the bargaining unit, and cannot discriminate and win wage increases for or process the grievances of only its election supporters

Surface Bargaining

When an employer engages in bargaining that is insincere, usually with the intent to not reach agreement with the union and thus not enter into a new collective bargaining agreement; sort of going through the motions, form of bad faith bargaining. No real intent of agreeing on anything, simply going through the motions.

Majority Rule

Where a majority of states agree

Minority Rule

Where only a few states chose to follow that rule of law (e.g., Louisiana and the heavy influence of French law)

Free Riders

Where unions are paying money to represent employees, but those employees are not paying any union dues. Found in "right-to-work" states. Unions argue this is unfair and that Congress needs to repeal Section 14 of Taft-Hartley, but Congress has steadfastly refused.

Intrastate Commerce

Within a state

Intrastate Commerce

Within state borders

Scabs

Workers hired to temporarily or permanently replace strikers

Rule of Fours

Writ is issued when four SCOTUS justices vote in secret proceedings to review the case

Malicious Prosecution

Wrongful use of legal proceeding, criminal or civil

Trespass to Personal Property

Wrongfully harming or interfering with the personal property owner's right to the exclusive possession and enjoyment of their property; also called Trespass to Chattel

Plessy v. Ferguson

a 1896 Supreme Court decision which legalized state ordered segregation so long as the facilities for blacks and whites were equal "separate but equal" doctrine supreme court upheld the constitutionality of jim crow laws

Fisher v. University of Texas

a case which ruled that strict scrutiny should be applied to determine the constitutionality of a race-sensitive admissions policy. Affirmative Action race can be an admissions factor in colleges

Senatorial Courtesy

a custom whereby presidential appointments are confirmed only if there is no objection to them by the senators from the appointee's state, especially from the senior senator of the president's party from that state. Presidential custom of submitting the names of prospective appointees for approval to senators from the states in which the appointees are to work.

Montana Wrongful Discharge from Employment Act

a discharge is only wrongful if it was in retaliation for the employee's refusal to violate public policy, if it was not for good cause (defined as reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties.) and the employee had completed the employer's probationary period of employment, the employer violated the express provision of its own written personnel policy.

Appeal

a legal proceeding in which the appellant resorts to a higher court for the purpose of obtaining a review of a lower court decision and a reversal of the lower court's judgment or the granting of a new trial

Recession:

a period of temporary economic decline during which trade and industrial activity are reduced, generally identified by a fall in GDP in two successive quarters.

Toxics Release Inventory

a publicly available database that contains information on toxic chemical releases and other waste management activities reported annually by certain covered industry groups as well as federal facilities. This inventory was established under a federal law called the Emergency Planning and Community Right to Know Act of 1986 (EPCRA) and was expanded by the Pollution Prevention Act of 1990. It requires facilities in certain industries which manufacture, process, or use significant amounts of toxic chemicals, to report annually on their releases of these chemicals. The reports contain information about the types and amounts of toxic chemicals that are released each year to the air, water, land and by underground injection, as well as information on the quantities of toxic chemicals sent to other facilities for further waste management.

Directed Verdict

a ruling that the plaintiff has entirely failed to prove some aspect of her case final ruling by the judge in favor of one party based on the evidence introduced at trial

Safe Drinking Water Act

federal law that protects public drinking water supplies throughout the nation. Under the SDWA, EPA sets standards for drinking water quality and with its partners implements various technical and financial programs to ensure drinking water safety.

1790 Patent Law

fill in later

Browning-Ferris-Industries of Vermont, Inc. v. Kelco, 1989

fill in later

Espionage Act of 1996

fill in later

Occupational Safety and Health Administration (OSHA)

fill in later

Starr 1965

fill in later

Volkswagenwerk Aktiengesellschaft (1974)

fill in later

Three Major Types of Torts

intentional torts, negligence, strict liability

Substantial Governmental Interest Test

intermediate scrutiny of law. The law being challenged must further an IMPORTANT government interest in a way that substantially related that interest. Has to do with Due Process. Concerning Issues like gender, legitimacy, gun control, free speech, etc.

Subject Matter Jurisdiction

judicial authority to hear a particular type of case

Codification

the action or process of arranging laws or rules according to a system or plan.

Civil Rights Movement

movement in the United States beginning in the 1960s and led primarily by Blacks in an effort to establish the civil rights of individual Black citizens

Undue Influence:

occurs when one party to a contract is in a position of trust and wrongfully dominates the other party

Unilateral:

one-sided

What do Compensatory Damages cover?

past and future medical expenses, past and future economic loss, past and future pain and suffering

Ethical Retribution

payment of compensation is harmful to the tortfeasor, justice requires that the tortfeasor should be harmed

Texaco v. Pennzoil

plaintiff = penzol, defendant = texaco pennzoil and getty enter into agreement for merger pennzoil and getty sign memo agreement both issue press releases now, texaco makes offer to acquire getty getty cancels pennzoil agreement and accept texaco pennzoil sues texaco, 3 bil for penzool awarded did pennzoil and getty have a contract sooooo texaco and getty do have a contract 1. agreement: yes 2. consideration: yes 3. capacity: maybe - can they contract to sell what was already sold 4. legality: yes 5. no defenses: yes BUT combo of MOA and press releases ruled to be equivalent to a binding contract, so pennzoil and getty did have a contract 1. MOA + press release 2. yes 3. yes 4. yes 5. yes 7 billion compensatory, 3 billion punitive awarded, most in history "The Ten Billion Dollar Jury Award"

Marine Protection, Research, and Sanctuaries Act

prohibits the dumping of material into the ocean that would unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities

Executed:

put to death, usually as a legal punishment

Repudiation:

rejection of a proposal or idea

1) Primary standards

set limits to protect public health, including the health of "sensitive" populations such as asthmatics, children, and the elderly.

2) Secondary standards

set limits to protect public welfare, including protection against visibility impairment, damage to animals, crops, vegetation, and buildings.

Arbitration

settling a dispute by agreeing to accept the decision of an impartial outsider

Types of Defamation

slander (spoken) and libel (written)

Two types of disparagement

slander of title, slander of quality

Consideration

something of value exchanged for something else of value

Privity

succession or chain of relationship to the same thing or right, such as privity of contract, privity of estate, privity of possession

A U.S. Patent is only good in:

the United States and its territories

Agency

the capacity of individuals to act independently and to make their own free choices the potential power of individuals and groups to contest cultural norms, values, mental maps of reality, symbols, institutions, and structures of power

Equal Protection

the equal application of the law regardless of a person's race, religion, political beliefs, or other qualities

Federal Lanham Trademark Act of 1946

the law that currently governs trademarks; a trademark last for 10 years but can renewed an unlimited amount

White Primary

the practice of keeping blacks from voting in the southern states' primaries through arbitrary use of registration requirements and intimidation; outlawed by SCOTUS in 1944

State's Rights

the rights and powers held by individual US states rather than by the federal government.

Revocation:

the taking back of an offer by the offeror

No Strike Clause

the union which is party to the labor agreement agrees no to strike during the (typically three year) term of the contract. The union waives its right to strike during the contract term in return for the ability to air its concerns via the grievance procedure culminating in arbitration.

Remand

to send or order back; in law, to send back to jail or to a lower court

Bilateral Treaties

treaties between two states designed to regulate some aspect of their relationship with one another; legally binding on contracting parties

Adversarial System

trial procedures designed to resolve conflict through the clash of opposing sides, moderated by a neutral, passive judge who applies the law the judicial system used in the United States. It allows opposing parties to present their legal conflicts before an impartial judge and jury.

Bilateral

two-sided