Blaw Final

Front 1

does the 1st ammendment of free speech apply to private entities

Back 1

no

Front 2

federal statutes are passed by

Back 2

congress

Front 3

does federal administrative law have the full force of law

Back 3

yes

Front 4

where does common law apply

Back 4

only where there is no specific statute or regulation

Front 5

common law is based upon the principle of

Back 5

stare decisis

Front 6

looking to previous cases and following those precidences (done by judges)

Back 6

stare decisis

Front 7

state/local law can ______ federal but not ______ it

Back 7

further
lessen

Front 8

summary of common law in all 50 states

Back 8

restatements of law

Front 9

can restatements of law be binding?

Back 9

no, but can be persuasive

Front 10

if there are no cases with similar facts then it is a case of

Back 10

1st impression

Front 11

what the plaintiff has to show or prove in order to win a case

Back 11

burden of proof

Front 12

what is the proponderance of the evidence in a civil case

Back 12

over 50%

Front 13

what is the proponderance of the evidence in a criminal case

Back 13

close to 100% and beyond a reasonable doubt

Front 14

reliance on precedents where there is NO stature or regulation

Back 14

common law system

Front 15

in a civil law system, the primary source of law is

Back 15

statutory code

Front 16

can you tell which is the plaintiff and defendent by looking at the case title?

Back 16

no, bc the order is often switched

Front 17

are judges bound by case precedences?

Back 17

no

Front 18

the amount $ in controversy for federal courts is

Back 18

more than $75,000

Front 19

what are the 5 stages in the litigation process (PDTAE)

Back 19

PDTAE
Pleadings
Discovery
Trial
Appeal
Enforcement

Front 20

in what stage of litigation would you motion to dismiss or motion for summary judgement

Back 20

pleadings

Front 21

even if what they are saying i did is true, i still didnt do anything wrong. This would be cause to

Back 21

motion to dismiss

Front 22

judge decides case prior to trial. No genuine issues of fact. Do this if you just want to judge to decide based on the facts

Back 22

motion for summary judgement

Front 23

in this stage of litigation you obtain evidence and gather information. Learn what facts are accepted and excused. When you give depositions

Back 23

discovery

Front 24

giving oral testimony under oath. used to impeach credibility

Back 24

deposition

Front 25

written questions that can only go to the parties themselves. not to 3rd parties. have your attorney help you write it.

Back 25

interrogatories

Front 26

voir dire

Back 26

jury selection

Front 27

may either side request a jury?

Back 27

yes

Front 28

at what stage in litigation does jury selection take place

Back 28

trial

Front 29

hung jury

Back 29

jury cannot make decision

Front 30

where you are saying to the judge that the jury was completely wrong and that the judge should rule in the opposite..

Back 30

motion for judgement n.o.v. (not withstanding the verdict)

Front 31

you motion this when new evidence comes up or when misconduct or errors take place

Back 31

motion for new trial

Front 32

does the appellate court conduct a new trial

Back 32

no, they just look at the original case to see if legal mistakes were made

Front 33

an important thing to consider before starting the litigation process is whether or not the person you're suing has the

Back 33

assets. because the judge does not collect the $ for you

Front 34

are the results of mediation binding

Back 34

no

Front 35

are the results of arbitration binding

Back 35

yes

Front 36

can you appeal an arbitration ruling

Back 36

no. unless there was a defect in the arbitration process such as bribes being received

Front 37

does the loser pay the winners attorney fees?

Back 37

no. only in the english rule

Front 38

prohibits govt from establishing a state religion, as well as laws that promote religion or show a preference for one religion.

Back 38

establishment clause

Front 39

freedom of speech is not absolute and and some forms are unprotected (illegal). those are

Back 39

defamation
threats
obscenity

Front 40

you can demand a search warrant unless you are a

Back 40

highly regulated industry (liquor store, massage parlor)

Front 41

this states that if the government makes a decision to take your life, liberty, or property, the decision must be made fairly with you given proper notice and opportunity to object

Back 41

procedural due process

Front 42

the govt must treat similarly situated individuals similarly does not apply to men and women why (example)

Back 42

topless dancing

Front 43

where in the constitution are privacy rights mentioned

Back 43

nowhere

Front 44

a civil wrongdoing other than a breach of contract

Back 44

tort

Front 45

what is the source of tort law?

Back 45

state common law. meaning that torts are a little bit different in all 50 states

Front 46

is an evil or bad motive required for it to be an intentional tort?

Back 46

no. pushing someone down as a joke can still be an intentional tort

Front 47

failure to behave as a reasonable person is also known as

Back 47

negligence

Front 48

when is an employer responsible for the torts committed by their employee

Back 48

if it occurs within the scope of employment. employer cannot argue that they didnt know what the employee was doing

Front 49

going to punch someone in the face and stopping an inch before their face

Back 49

assault

Front 50

harmful or offensive intentional touching

Back 50

battery

Front 51

what are defenses to assault and battery

Back 51

self defense and consent

Front 52

when would consent to battery be relevent

Back 52

you consent to a certain level of violence when playing sports

Front 53

what is a defense to false imprisonment

Back 53

a storekeeper holding someone they suspect for shoplifting with probable cause

Front 54

would swearing at an employee be considered an IIED (intentional infliction of emotional distress)

Back 54

no, because it is not beyond the bounds of decency

Front 55

false statements of fact (as opposed to opinion which is protected by the 1st ammendment)

Back 55

defamation

Front 56

what are the 3 requirements for defamation

Back 56

-false statement of fact
-communicated to others apart from the defamed party
-causes injury to the p's reputation

Front 57

written defamation

Back 57

libel

Front 58

spoken defamation

Back 58

slander

Front 59

what is a big defense to defamation

Back 59

truth. if it is true, it can't be defamation

Front 60

an intentional deceit for personal gain

Back 60

fraud

Front 61

is it a reasonable defense to trespass on someones land if you didnt know you werent able to?

Back 61

no. not a defense

Front 62

can physical invasion trespassing be pollution entering a river?

Back 62

yes

Front 63

american businesses and products are the safest so a common tort against them is

Back 63

negligence

Front 64

when both the p and d's negligence are computed and the liability for damages is evenly distributed

Back 64

comparative negligence

Front 65

what is a defense to negligence

Back 65

assumption of risk

Front 66

the CAN-SPAM act benefits the

Back 66

spammer

Front 67

this states that only the actual parties to the sales contract could sue & be sued

Back 67

privity of contract

Front 68

the manufacturer must use ____ ____ in manufacturing safe products

Back 68

due care

Front 69

a written or oral representation about goods

Back 69

express warranty

Front 70

the assumption that a restaurant will serve you save food is an ______ warranty

Back 70

implied

Front 71

is a manufacturer able to assume that their product warnings will be read, thus giving reasonable warning or will they still be held liable

Back 71

yes. they will not be held liable unless they fail to warn

Front 72

is assuption of risk a defense to product liability

Back 72

yes

Front 73

is a commonly known danger a defense to product liability

Back 73

yes, people should know that a knife is sharp

Front 74

a defense to product liability would be if it is an electrician doing electrical work who gets electricuted. also known as

Back 74

knowledgeable user

Front 75

when a person entrusted with another persons property or funds fraudulently appropriates it

Back 75

embezzlement

Front 76

is a defense to embezzlement that you intended to return the funds?

Back 76

NO

Front 77

who is at fault when a bribe takes place

Back 77

the briber and bibee

Front 78

is offering a bribe a crime in itself

Back 78

yes

Front 79

knowing that you're about to file for bankruptcy and selling your assets to family or friends for a small amount so that the bank cant claim it

Back 79

bankruptcy fraud

Front 80

any time you use non public info to benefit from a stock trade

Back 80

insider trading

Front 81

if your lifestyle exceeds the level possible with your reported income

Back 81

tax evasion

Front 82

disposing of your money (possibly by putting it into assets or giving to other people) "cleaning your money"

Back 82

money laundering

Front 83

does protection against self incrimination apply to organizations?

Back 83

no, only to individuals

Front 84

what is the most extensively and expensively litigated topic

Back 84

intellectual property

Front 85

a distinctive word, mark, or symbol applied to products or services that are automatically protected

Back 85

trademarks

Front 86

can you get a trademark on any word you want?

Back 86

you can't if the word is too generic

Front 87

using a well known or distinctive trademark inappropriately in a way that reduces the value of the original. (candyland porn site or mcdonalds pianos)

Back 87

dilution

Front 88

taking someones TM, registering it as a domain name and then trying to sell it to them

Back 88

cyber squatting

Front 89

consent from owner to use its intellectual property

Back 89

licensing

Front 90

this gives you extensive right to your invention

Back 90

patent

Front 91

how long is a patent good for

Back 91

20 years

Front 92

do patents have to be registered

Back 92

yes

Front 93

who gets the patent first?... the first one to prove they invented it or the first one to file

Back 93

the first to file

Front 94

can theories and ideas be patented

Back 94

no. a patent must be on something useful and tangible

Front 95

how long are copyrights good for

Back 95

life of author plus an additional 70 years

Front 96

exclusive rights to original works such as art, music, literature, movies, and software

Back 96

copyright

Front 97

how do you get your work copyrighted

Back 97

it happens automatically

Front 98

anything that makes a business unique and that would have value to the competitor

Back 98

trade secrets

Front 99

is filing or registration required for trade secrets

Back 99

no

Front 100

an agreement where you wont work for a competitor company for a short period after leaving a company voluntarily or if fired

Back 100

non-compete agreement

Front 101

does intellectual property have to be filed in each separate country where you are doing business?

Back 101

yes

Front 102

most contracts are governed by __________ so it is a little bit different in every state

Back 102

state common law

Front 103

covers the sale of goods across national boundaries

Back 103

CISG (convention for the international sale of goods)

Front 104

an agreement that the law will enforce

Back 104

contract

Front 105

are all agreements contracts

Back 105

no

Front 106

can you form a contract if you are under 18 or intoxicated

Back 106

no

Front 107

an element of a contract where each party has to be agreeing to do something or refrain from doing something is known as

Back 107

consideration

Front 108

can a contract be for something that is illegal

Back 108

no

Front 109

a contract that is created by the conduct of the parties (pumping gas into your car)

Back 109

implied contract

Front 110

a contract that is created by words whether written or oral

Back 110

express contract

Front 111

an example of a voidable contract is

Back 111

a contract with a minor. the minor has the ability to void the contract at any time. even if it is the sale of goods

Front 112

what must take place for a contract o exist

Back 112

offer and acceptance

Front 113

if you counteroffer, what becomes of the original offer

Back 113

it is terminated

Front 114

if you were promised a gift and didnt have to do anything in return to receive it then is it a binding contract?

Back 114

no. each sides must be getting something in return

Front 115

do courts take into consideration whether the contract or offer is a fair exchange?

Back 115

no. you are given the freedom of a contract. therefore if you later change your mind bc it is fair, you still have to uphold your end of the contract

Front 116

if an athlete outplays their contract and is given more money does that make it a valid contract?

Back 116

no. only if they are giving something back in return (more years playing for the team)

Front 117

what is the only contract that doesnt require consideration (each end doing something)

Back 117

sale of goods

Front 118

can businesses discriminate against minors

Back 118

yes. bc contracts with minors can be terminated at any point (even if the minor boughht a car and subsequently wrecked it)

Front 119

a provision that releases a contractual party from liability in the event of monetary or physical injury, no matter who is at fault

Back 119

exculpatory clause

Front 120

when a party to a contract has performed exactly as agreed

Back 120

complete performance

Front 121

a party who in good faith performs substantially all of the terms of a contract can enforce the contract against the other party

Back 121

substantial performance

Front 122

does any breach of contract entitle the non breaching party to damages

Back 122

yes

Front 123

what happens when there is a material breach of contract

Back 123

discharges the non breaching party from further performance under the contract

Front 124

when one party of the contract refuses to perform their duties it is known as

Back 124

anticipatory repudiation. this is treated as a material breach and the non breaching party can sue to collect damages immediately

Front 125

if you get fired, you cant sit around and not take reasonable steps to try to find a replacement job. you must try to reduce the damages incurred

Back 125

mitigation of damages

Front 126

are punitive damages awarded for a breach of contract

Back 126

no

Front 127

special damages beyond the contract itself (lost profits)

Back 127

consequential damages

Front 128

for a party to receive consequential damages, must the breaching party have known about the potential for lost profits and must the damages be reasonably forseeable

Back 128

yes

Front 129

a court order to perform under the contract. this is a typical remedy for sale of property

Back 129

specific performance

Front 130

if you say that you will sell someone a real painting and sell a fake one, the court will likely order

Back 130

specific performance (selling what was promised under the contract)

Front 131

when is specific performance not ordered by the court

Back 131

when the contract was for personal services. (protected under the 13th ammendment for slavery)

Front 132

any dispute arising will only be litigated in the county or city where you would want it to take place. under the

Back 132

forum-selection clause