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109 Cards in this Set

  • Front
  • Back
role of judiciary system
to interpret and apply the law
court system
trial courts

intermediate appellate courts

state and federal courts
alternative dispute resolutions
negotiation: parties come together w/ or w/out lawyers

mediation: parties themselves reach a mutual agreement with the help of a 3rd party who proposes the decision. if the parties want to, they could possibly make it binding

arbitration: formal method; neutral 3rd party (arbitrator) makes the decision which is often binding
intentional torts against persons
assault and battery

false imprisonment

infliction of emotional distress

defamation

invasion of right to privacy

appropriation: use of someones name/likeness

misrepresentation/fraud

wrongful interference: ex: destroying a contract for one's own economic benefit
intentional torts against property
tresspass to land

trespass to personal property

conversion: personal property is unrightfully taken from the owner and placed in the hands of another

disparagement of property: economically injurious falsehood made about ones property
unintentional torts/negligence
neglegence: careless performance of a legally required duty or the failure to perform a required act; must be proved that defendant breached duty, which injured another
defenses to negligence
assumption of risk

superseding cause

contributory and comparitive negligence
contributory and compartative neglegence
contributory: plaintiff will not have to pay damage no matter the degree of the neglence in comparison

comparitive: both parties may be assessed
special negligence documents and statuses
res ipsa loquitor: plaintiff need not prove negligence since the facts speack for themselves

negligence per se: person violates a statue or ordinance providing penalty which causes another to be injured

special negligence statues: dram shop and good samaritan are examples
strict liability
person must be held liable regardless of the degree of care the exercised, for damages and injuries caused by their product or activity; strict liability for harms caused by dangerous animals, activities, defective products, etc.
tortfeaser
one committing the tort
compensatory damages
meant to reimburse plaintiff for damage
causation in fact
causation would not have occurred without defendant's act
superseding cause
when a cause for a torte is not forseeable
slander of qaulity
publishing false info. about another's product
slander of title
when someone's ownership of a property is falsely questioned
long arm statue
when jurisdiction is available over nonresidents
judicial review
marbury vs. madison

enables judicial branch to check other branches
probate courts
focus on the transfer of assets
concurrent jurisdiction
both federal and state courts can hear a trial
exclusive jurisdiction
strictly federal
default judgement
plaintiff is granted what they want if defendant does not respond to the summons
patent
grant from govt. that gives inventor exclusive rights to invention

must be novel, not obvious, useful

categories: utility, design, plant

aquired by filing patent with US Patent and trademark office

inventor has right to make sell, license, etc. for duration

duration-20 yrs, 14 for design parents

remedies for infringement: monetary, lawyer's fees
copyright
intangible property right granted to authors and originators of lit. work. and art

must be original, able to be reproduced and communicated and percieved

categories: lit. works, musical works, dramatic works, pantomime or choreographic, graphic or sculptural works; films and AV, sound recordings

automatically acquired

author has right to reproduce, distribute, license, display, etc.

duration: 70 yrs for authors, for publishers 95 after publishing or 120 yrs after creation

remedies for infringement: actual damages, profits received by infringer, attourney's fees
trademarks
and distinctive word, name, symbol, device, or combo. of these used to identify or distinguish goods or services

trademarks, service marks, trade dress, etc. must distinctive

categories: strong distinctive marks, marks that have acquired secondary meaning by use, other marks, such as certification or collective marks; trade dress

how is acquired: common law of by filing with the US patent office, federal registration, can be renewed b/t 5th and 6th yrs, and then every 10 yrs after

owner has the right to use marks and exclude others from doing so

duration: unlimited, registration can also be renewed

civil remedies: injunction preventing future use of mark
, actual damages + profit received by infringer; impoundement and destruction of infringing marks; attorney's fees
trade secrets
information (ex: recipes, programs, devices, etc.) that give a business a certain advantage over competition who does know the info. or processes

requirements: info. must have commercial val., not be easily ascertainable, reasonably protected

categories: customer lists, research, plans and programs, techniques in marketing and production, formulas, compilations

acquired through originality and development

owner can license or assign trade secret; use legal means to protect against use by others

unlimited duration, as long as it is not revealed to others

monetary damages plus attorney's cost
cybermark
trademark in cyberspace
felony
serious crime punishable by death or imprisonment for over a year
misdemeanor
any crime that is not a felony
criminal liability
guilty act: some harmful act must committed for a crime to exist

intent: intent to commit a crime or wrongful mental state
corporate criminal liability
liability of corps.: corps. normally are liable for crimes committed but their workers w/in the scope of employment; corps. cannot be imprisoned, but they can be denied certain legal priveledges

liability of corporate officers and directors: they are liable for crimes they commit and may be held liable for their employees actions under their supervision
violent crimes:
crime that causes others to suffer harm or death ex: rape, robbery, assualt and battery, murder
property crime
ex: burglary, larsen
public order crime
crime against morals of public (ex: public drunkness, gambling, etc.)
white-collar crime:
non-violent crimes committed for personal business gain
bribery, bankruptcy fraud, etc.
organized crime
crime committed by groups operating illegitimately for illegal goods and services
defenses to criminal liability
infancy: a minor

intoxication

insanity

mistake: ignorance about the law or not knowing what the outcome of something will be

consent:

duress: wrongful threat

justifiable use of force: self defense

entrapment: an undercover officer convinces someone to commit a crime

statue of limitations: must be prosecuted w/in certain numbers of years

immunity: not giving out info. to avoid self incrimination
fourth ammendment
provides protection against unreasonable searches and seizures; probably cause is needed to get a warrant
fifth amendment
due process

prohibits double jeopardy

protects against self incrimination
6th amendment
speedy trial, trial by jury, public trial, witnesses, right to counsel
8th amendment
prohibits bail and excess fines, cruel and unusual punishment
exclusionary rule
prohibits evidence in trial that violates const. right or was illegally gotten
miranda rule
individuals who are arrested must be informed of their rights
criminal process
arrest, indictment, and trial: procedures concerning arrest, indictment and trial are supposed to protect rights of individuals against the state

sentencing guidelines: indicate range of penalties for fed. crimes, judges must abide by guidelines when giving sentences
double jeopardy
being tried for the same crime twice
grand jury
determines whether it is reasonable to believe that a crime was committed;
plea bargaining
deal that gives a lesser sentence
elements of a valid contract
agreement, consideration, contractual capacity, legality
possible defenses of contracts
genuiness of assent and form
bilateral contract
a promise for a promise
unilateral contract
a promise for an act
express contract
formed by words
implied in fact contract
formed at least in part by the conduct of 2 parties
quasi-contract
imposed by the law
formal contract
requires special form
informal contract
requires no special form
executed contract
not fully performed
executary contract
in the process of being performed
valid contract
necessary contractual elements:

offer, acceptance, consideration, parties with legal capacity, legal purpose
requirements of an offer
intent

definiteness

communication
termination of an offer by action of parties
revocation

rejection

counteroffer
termination of an offer by law
lapse of time, destruction of subject of the offer, death or incompetence, illegality
acceptance of contract
can only be made for the offeree of their agent

if new terms are added, it is considered to be a counteroffer

acceptance of unitlateral offer is effective upon full performance of the requested act

acceptance of bilateral offer must be communicated
elements of consideration
something of legally sufficient value must be given in exchange for the promise

bargained-for exchange: the contract involves something that the person normally would not be legally obligated to do
(or not do)
contracts that lack consideration
preexisting duty

past consideration

illusory promises: when performance is uncertain
settlement of claims
accord and satisfation

release

convanent not to sue
promisory estoppel
a person who has relied on the promise of another may in some cirumstances obtain relief; promise is enforced
estoppel
being barred or impeded
release
one party forfeits the right to have legal claim on another party
recission
unmaking of a contract to return parties to where they were at the starting point
option contract
offerer promises to hold open an offer for a certain period of time for payment given by the offeree, takes away offerers power to revoke in time specified or reasonable amt of time is not specified
contracts with minors
contracts with minors are generally voidable at the choice on th minor
disaffirmance and minors
legal avoidance of obliation:

disaffirmance can usually take place any time during minority and only soon after they have reached majority

if they disaffirm the contract, the who thing is disaffirmed

if disaffirming occurs, minor is generally required to return recieved goods or pay their value

minor who has committed fraud (i.e. misrepresenting age) will usually be denied the right to disaffirm by the courts

the minor will remain liable for the value of goods if they must disaffirm
ratificaion and minors
acceptance of obligation:

express ratification exists when the minor assumes the obligations

implied ratification: exists when the conduct of the minor is not consistent with disaffirmance or when they fail to disaffirm
parents' liability and contracts
parents generally are not liable for contracts that their children enter into, except in the case of necessaries,
intoxicated persons and contracts
a contract entered into by an intoxicated person is usually voidable by him if the lacked mental capacity of the intoxication was not voluntary

a contract with an intoxicated person is enforceable if the person understood the legal consequences
mentally incompetent persons and contracts
a contract made a person judged by the court to be incompetent is void

if the person is not adjudged the court, it is there choice whether or not void it
contracts contrary to statue
usury- rates above the lawful max.

gambling-illegal and void

sabbath(sunday)laws: certain contracts cannot be formed on sunday, not enforced in all states

linncensing statues
contracts contrary to public policy
contracts in restraint of trade

unconscionable contracts and clauses: when a contract is oppressive to one party

exculpatory clauses: releases party in the event of monetary of physical injury
effects of illegality and contracts
court will aide neither party when both seem to be equally at fault -- no recovery

exceptions:
when on party is innocent
when someone in a party is protected by a statute
when either party seeks reparation before the illegal act is performed
when one party entered into illegality through fraud, duress, etc.
adhesion contract
dominant party drafts contract and presents it the other party on a take it or leave it basis
blue sky laws
state laws regulate and supervise investment companies for the benefit of the public
mistakes and contracts
usually the mistaken party is bound to the contract unless the other party knows about the mistake or it was a math error

bilateral: if parties are mistaken about actual fact, either can leave the contract; if they mistaken about value or quality, it can be enforced
fraud and contracts
when fraud occurs, the innocent party can usually avoid the contract

1. a misrepresentation of fact must occur

2. there must be intent to decieve
3. the innocent party must rely on this deceit
undue influence and contracts
arises from special relationships in which one party's free will has been overcome by undue influence by the other party; usually these types of contracts are voidable
duress
when a party forces another into a contract in some way, the forced party may rescind the contract
statute of frauds - contracts that must be in writing
contracts involving land

contracts whose terms cant be performed w/in a year

collateral promises:

promises made in the consideration of marraige

contracts for goods costing $500 or more
the parrol of evidence rule
in trial prohibits the introduction of evidence of the parties prior negotiations, agreements, etc. that contradict or vary the terms of the party's written contract

exceptions

to clarify ambiguous terms
to show that it was voidable or void
to show it was modified
to clarify contract when it lacks terms
under UCC, to explain the meaning in light of prior dealing
to show it subject to oral agreement
when there has been an error
integrated contract
written contract that explains the final expression of the party's agreement
binding authority
law the court must follow when deciding a case
establishment and free exercise clause
establishment: no state-sponsored religion

free exercise: person can hold any religion they want to
mechanic's lien
lien filed on owner's real estate b/c services or materials were not paid for
artisan's lien
possossory lien on an owner's property for labor performed or value added
innkeeper's lien
possesory lien on a hotel's guest baggage for changes that are not paid
judicial liens
writ of execution: court order directing sheriff to seize and sell debtor's nonexempt property to pay debt

attachment: court-ordered seizure prior to determination of creditor's rights;
garnishment
collection rememedy that allows debtor to attach a debtor's money and property held be a third person (ex: taking wages)
creditor's composition agreement
contract b/t debtor and creditors by which creditor's debts are made into a sum less than that is owed
mortgage foreclosure
on the debtor's default, the entire mortgage debt is due and payable, allowing the creditor to foreclose on the real estate to settle debt
suretyship
ex: cosigning on something; debtor and third party can both be liable
gauranty
third party is secondarily liable for debtor's default and debt
exemption - real property
debtor can retain their family home to some extent
exemption - personal property
furniture to certain dollar amt
clothes and some possessions
vehicles up to certain dollar amt
certain animals, such as livestock and pets
equiptment used in business or trade
Ch 7 - liquidation
who can apply? debtors-voluntary, creditors, involunatary

who is the debtor? any person (including partnerships and corps.)besides RR, banks, insurance cos., loan institutions, farmers, credit unions, etc....

procedure? nonexempt property is sold w/ proceeds distributed to the creditors

advantages? usually involves a fresh start w/ little or no debt
Ch 11 - reorganization
who can apply? debtors-voluntary, creditors-involunatary

who is the debtor? anyone eligable for ch 7, including RR

procedure? plan is submitted, debt is discharged

advantages? debtor can continue business creditors must accept it, it allows for reorganization and liquidation of debt
Ch 12 & 13 - adjustment
who can apply? debtors - voluntary only

who is the debtor? ch 12- any family farmer
ch 13- any person (but not partnerships or corps.) with regular income who owes debt less than $290,525 or fixed debt less than $871,550

procedure? plan is submitted and needs to approved if debtor turns over disposable income for 3 yrs; it the plan goes right, debt is discharged

advantages? debtor continues business and possession of assets; most debts sould discharged after 3 yrs.
cram down provision
court may force creditors to accept debtor's plan
debtor in possession
continues to own and operate their own business
order for relief
relieves th debtor of the immediate debt
agency relationship
the agency acts on behalf of the principal in dealing with third parties; an employee who deals with 3rd parties is normally an agent;