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219 Cards in this Set
- Front
- Back
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What is the liability of manufacturers, sellers, and others for the injuries caused by defective products?
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Products Liability
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What is a person injured by a defective product may sue; because the defendant breached a duty of care to the plaintiff that caused the plaintiffs injuries?
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Negligence
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The failures to exercise due care are what?
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Failing to assemble the product carefully, negligent product design, negligent inspection or testing of the product, negligent packaging, failure to warn of the dangerous propensities of the product
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What is when the seller or lessor fraudulently misrepresents the quality of a product, or conceals a defect in it? Recovery limited to persons injured because they relied on the misrepresentation
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Misrepresentation
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What was adopted by the supreme court as a basis for product liability through the Greenman v. Yuba Power Products, Inc., courtcase?
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Strict Liability
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Unlike negligence, what does not require the injured person to prove that the defendant breached a duty of care?
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Strict Liability/ Liability without fault
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What is imposed on manufacturers, sellers, and lessors who make and distribute defective products that cause injury to users and others?
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Strict Liability
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All parties in what of a defective product are strictly liable for the injuries caused by that product?
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Chain of Distribution
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What is not required for a plaintiff to sue for strict liability?
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Privity of Contract
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To recover for strict liability, the injured party must first show that the product that caused the injury was somehow what?
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defective
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What are the 4 most common types of product defects?
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manufacture, design, failure to warn, and packaging
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A manufacturing defect occurs when the manufacturer fails to do what?
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Properly assemble a product, properly test a product, or adequately check the quality of a product
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What do design defects include?
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Toys designed with removable parts that could be swallowed by children, machines and appliances designed without proper safeguards, trucks designed without a backup warning device
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In evaluating the adequacy of a product's design, the courts apply a what?
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Risk-Utility analysis
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What is the courts have held that automobile manufacturers are under a duty to design automobiles so they take into account the possibility of harm from a person's body striking something inside the automobile in the case of a car accident?
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Crashworthiness Doctrine
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What is a defect that occurs when a manufactuer does not place a warning on the packaging of products that could cause injury if the danger is unknown?
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Failure to Warn
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What is defect that occurs when a product has been placed in packaging that is insufficiently tamperproof?
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Defect in Packaging
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What are other product defects?
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Failure to provide adequate instructions, inadequate testing of products, inadequate selection of component parts or materials, improper certification of the safety of a product
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What are the 7 defenses to product liability?
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Supervening event, generally known dangers, assumption of the risk, government contractor defense, misuse of the product, statute of limitations, contributory & comparative negligence
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What are certain products are inherently dangerous; products are known to the general population to be so sellers are not strictly liable for failing to warn of generally known dangers?
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Generally known dangers
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What is contractor who was provided specifications by the government is not liable for any defect in the product that occurs as a result of those specifications?
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Government Contractor Defenses
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What is when the defendant must prove that the plaintiff knew and appreciated the risk; the plaintiff voluntarily assumed the risk?
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Assumption of Risk
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What relieves the seller of product liability if the user abnormality misused the product?
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Misuse of the product
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When manufacturer must notify purchasers and users; must correct defect; usually achieved through recall and repair of replacement?
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Correction of a Product Defect
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What is alteration or modification of a product by a party that absolves seller from strict liability; modification must be made after it leaves seller's possession; alteration must cause injury?
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Supervening Event
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What is statute that requires an injured person to bring an action within a certain number of years from the time thta he or she was injured by the defective product; defendant relieved of liability if action not brought within limitation period?
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Statute of Limitations
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What limits the seller's liability to a certain number of years from the date when the product was first sold?
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Statute of Repose
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What is when a person who is injured by a defective product; injured party has been negligent; cannot recover from the defendant because of his negligence?
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Contributory Negligence
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What is when plaintiff contributorily negligent for his or her injuries; responsible for a proportional share of the damages; damages proportioned between plaintiff and defendant?
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Comparative Negligence
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What are the two types of property?
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Real Property and Personal Property
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What are intellectual properties?
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patents, copyrights, trademarks, trade secrets and domain names
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What is a product formula, pattern, design, compilation of data, customer list, or other business secret?
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trade secrets
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State unfair competition laws allow the owner of a trade secret to bring a lawsuit for what against anyone who steals a trade secret?
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misappropriation
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What can a successful plaintiff do against trade secrets being obtained by another?
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Recover profits made by offender, recover damages and obtain injunction prohibiting offender from divulging trade secret
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What act makes it a federal crime to steal another's trade secrets?
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Economic Espionage Act of 1996
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What is intended to provide an incentive for inventors to make their inventions public?
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Federal Patent Statute
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How long are patents for inventions valid?
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20 years
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What must an invention be to be patented?
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Novel, Useful, and Nonobvious
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What do the patentable subject matters include?
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machines, processes, compositions of matter, improvements to: existing machines, processes, compositions of matter; designs for an article of manufacture, asexually reproduced plants, living material invented by a person
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What are the 4 Patent Applications?
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Must contain a written description of invention, must be filed with the U.S. PTO, patent will be assigned a patent number if granted, and any party can challenge the validity of a patent or the issuance of one
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What is patents will not be granted if an invention was in the public domain for one year prior to application filing?
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One-Year "On Sale" Doctrine
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What permits an inventor to file a provisional application with the PTO pending the preparation and filing of a final and complete patent application; 3 months?
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The American Inventors Protection Act of 1999
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What is unauthorized use of another's patent?
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Patent Infringement
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What establishes the requirements for obtaining a copyright?
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Copyright Revision Act of 1976
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Only tangible writings are subject to what?
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Copyright registration and protection
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What are the many tangible writings okay for copyright?
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Books, periodicals, newspapers, plays, motion pictures, radio, television, lectures, sermons, addresses, poems, musical compositions and sound recordings, films, cartoons, travelogues, maps, paintings, drawings, sculpture, jewelry, glassware, tapestry, photos, slides, filmstrips, greeting cards, postcards, architectural models and drawings
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What is registration of copyrights?
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must be an original work, register with U.S. Copyright Office, Registration- permissive, voluntary, effected at any time during term of copyright, no longer required to use copyright or word "copyright"
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What grants copyright terms to life of author plus 70 years?
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Individual Copyright Holder
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What grants copyright terms to 95 years from the year of first publication or 120 years from the year of creation, whichever is shorter?
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Corporate Copyright Holder
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What is added computer programs as tangible writings; grants automatic copyright protection?
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Computer Software Copyright Act of 1980
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What protects hardware components?
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Semiconductor Chip Protection Act of 1984
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What occurs when a party copies a substantial and material part of the plaintiff's copyrighted work without permission?
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Copyright Infringement
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What criminalizes copyright infringement?
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NET Act
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What doctrine is the copyright holder's rights in the work are not absolute; the law permits certain limited unauthorized use of copyrighted materials?
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The Fair Use Doctrine
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What do the fair use doctrine protect uses for?
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1. Quotation of the copyrighted work for review or criticism or in a scholarly or technical work 2. Use in a parody or satire 3. Reproduction of a work in a legislative or judicial proceeding 4. Incidental reproduction of a work in a newsreel or broadcast of an event being reported 5. Brief quotation in a news report 6. Reproduction by a teacher or student of a small part of the work to illustrate a lesson
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What prohibits unauthorized access to copyrighted digital works by circumventing wrapper or encryption technology; prohibits manufacturer and distribution of methods for circumventing wrapper or encryption technologies?
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Digital Millennium Copyright Act
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What establishes the requirements for obtaining a federal mark; protects marks from infringement?
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Lanham Trademark Act
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What mark may be registered if it was in use in commerce; can be registered 6 months prior to use; marks may be opposed by third?
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Registration of Trademarks
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What is distrinctive mark, symbol, name, work, motto, or device that identifies the goods of a particular business?
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Trademark
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What distinguish the services of the holder from those of its competitors?
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Service Mark
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What certify that goods and services are of a certain quality or originate from particular geographical areas?
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Certification Mark
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What is used by cooperatives, associations, and fraternal organizations?
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Collective Mark
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To qualify for federal protection a mark must be what?
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distinctive- brand name that is unique and fabricated
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To qualify for federal protection a mark must have acquired a what?
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Secondary Meaning- when an ordinary term has become a brand name
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What is a term for a mark that has become a common term for a product line or type of service and therefore has lost its trademark protection?
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Generic Name
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What marks are a valuable property right that should not be eroded, blurred, tarnished, or diluted in any way by another; protects famous marks from dilution?
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Federal Dilution Act of 1995
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What is federal crime to intercept "electronic communication" while in transit, stored on router or server, or after receipt?
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Electronic Communications Privacy Act
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What is an agreement that is enforceable by a court of law or equity?
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Contract
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What if one party fails to perform as promised, the other party can use the court system to enforce the contract and recover damages or other property?
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Legally Enforceable Contract
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Who makes an offer to the offeree?
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Offeror
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Who has the power to accept the offer and create a contract?
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Offeree
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What are the four basic requirements that must be met to be an enforceable contract?
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Agreement, consideration, lawful object, and contractual capacity
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What are not considered supported by valid consideration?
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Gift Promises and moral obligations
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What is the consent of the parties to create a contract must be genuine; there is not real consent if the consent is obtained by: duress, undue influence, and fraud?
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Genuineness of Assent
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What is the law requires that certain contracts be in writing or in a certain form?
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Writing and Form
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What is contract law developed primarily by state courts?
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The Common Law of Contracts
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What is the Comprehensive statutory scheme that includes laws that cover aspects of commercial transactions?
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The Uniform Commercial Code (UCC)
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What is a contract entered into by way of exchange of promises of the parties; a promise for a promise?
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Bilateral Contract
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What is a contract in which the offeror's offer can be accepted only by the performance of an act by the offeree; a promise for an act?
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Unilateral Contract
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What is an agreement that is expressed in written or oral words?
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Express Contract
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What is a contract where agreement between parties has been inferred from their conduct?
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Implied-in-fact Contract
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What is the intent to enter into an express or implied in-fact contract is judged by the reasonable person standard?
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Objective Theory of Contracts
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What allows a court to award monetary damages to a plaintiff for providing work or services to a defendant even though no actual contract existed between the parties?
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Quasi-Contracts
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What are contracts that require a special form or method of creation; contracts under seal, negotiable instruments, letters or credit?
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Formal Contracts
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What are no special form or method is required for their creation; fully enforceable and may be sued upon if breached- leases, sales contracts, service contracts?
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Informal Contracts
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What is a contract that meets all of the essential elements to establish a contract; enforceable by at least one of the parties?
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Valid Contract
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What is a contract that has no legal effect; neither party is obligated to perform; neither party can enforce the contract?
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Void Contract
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What is a contract where one or both parties have the option to avoid their contractual obligations; both parites are released from their contractual obligations?
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Voidable Contract
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What is a contract where the essential elements to create a valid contract are met; however, there is some legal defense to the enforcement of the contract?
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Unenforceable Contract
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What is a contract that has been fully performed on both sides; a complete contract?
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Executed Contract
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What is a contract that has not been fully performed by either or both sides?
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Executory Contract
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What is a doctrine that permits judges to make decisions based on fairness, equality, moral rights, and natural law?
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Equity
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What is the manifestation by two or more persons of the substance of a contract?
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Agreement
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What is a theory that says the intent to contract is judged by the reasonable person standard and not by the subjective intent of the parties?
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Objective Theory of Contracts
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No valid contract results from what?
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Preliminary negotiations and offers that are made in jest, anger, or undue excitement
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What is the terms of an offer must be clear enough to the offeree to be able to decide whether to accept or reject the terms of the offer?
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Definiteness of Terms
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What is the court can supply a missing term if a reasonable term can be implied?
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Implied Terms
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What is an offer cannot be accepted if it is not communicated to the offeree by the offeror or a representative or agent or the offeror?
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Communication
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What are special offer situations?
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Advertisements, Reward and Auctions
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What is an invitation to make an offer?
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General Advertisement
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What is an invitation to make an offer?
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General Advertisement
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What is an actual offer?
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Specific Advertisement
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What is an invitation to make an offer?
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General Advertisement
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What is a special offer to form a unilateral contract; money for finding something?
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Reward
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What is an actual offer?
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Specific Advertisement
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What is an actual offer?
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Specific Advertisement
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What is unless expressly stated otherwise, an auction is an auction with reserve, ie., the seller retains the right to refuse the highest bid and withdraw the goods from auction?
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Auction with Reserve
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What is a special offer to form a unilateral contract; money for finding something?
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Reward
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What is a special offer to form a unilateral contract; money for finding something?
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Reward
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What is an auction in which the seller expressly gives up his or her right to withdraw the goods from sale and must accept the highest bid?
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Auction without Reserve
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What is unless expressly stated otherwise, an auction is an auction with reserve, ie., the seller retains the right to refuse the highest bid and withdraw the goods from auction?
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Auction with Reserve
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What is unless expressly stated otherwise, an auction is an auction with reserve, ie., the seller retains the right to refuse the highest bid and withdraw the goods from auction?
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Auction with Reserve
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What is withdrawal of an offer by the offeror terminates the offer?
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Revocation
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What is an auction in which the seller expressly gives up his or her right to withdraw the goods from sale and must accept the highest bid?
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Auction without Reserve
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What is express words or conduct by the offeree that rejects an offer?
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Rejection
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What is withdrawal of an offer by the offeror terminates the offer?
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Revocation
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What is an auction in which the seller expressly gives up his or her right to withdraw the goods from sale and must accept the highest bid?
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Auction without Reserve
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What is express words or conduct by the offeree that rejects an offer?
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Rejection
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What is withdrawal of an offer by the offeror terminates the offer?
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Revocation
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What is an invitation to make an offer?
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General Advertisement
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What is a response by an offeree that contains terms and conditions different from or in addition to those of the offer?
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Counteroffer
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What is a response by an offeree that contains terms and conditions different from or in addition to those of the offer?
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Counteroffer
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What is an invitation to make an offer?
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General Advertisement
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What is an actual offer?
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Specific Advertisement
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What is the offer terminates if the subject matter of the offer is destroyed through no fault of either party prior to its acceptance?
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Destruction of the subject matter
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What is express words or conduct by the offeree that rejects an offer?
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Rejection
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What is an actual offer?
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Specific Advertisement
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What is the offer terminates if the subject matter of the offer is destroyed through no fault of either party prior to its acceptance?
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Destruction of the subject matter
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What is the death or incompetency of either party terminates the offer?
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Death or incompetency of the offeror or offeree
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What is a special offer to form a unilateral contract; money for finding something?
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Reward
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What is a special offer to form a unilateral contract; money for finding something?
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Reward
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What is a response by an offeree that contains terms and conditions different from or in addition to those of the offer?
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Counteroffer
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What is the death or incompetency of either party terminates the offer?
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Death or incompetency of the offeror or offeree
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What is unless expressly stated otherwise, an auction is an auction with reserve, ie., the seller retains the right to refuse the highest bid and withdraw the goods from auction?
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Auction with Reserve
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What is unless expressly stated otherwise, an auction is an auction with reserve, ie., the seller retains the right to refuse the highest bid and withdraw the goods from auction?
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Auction with Reserve
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What is the offer terminates if the subject matter of the offer is destroyed through no fault of either party prior to its acceptance?
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Destruction of the subject matter
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What is an auction in which the seller expressly gives up his or her right to withdraw the goods from sale and must accept the highest bid?
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Auction without Reserve
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What is an auction in which the seller expressly gives up his or her right to withdraw the goods from sale and must accept the highest bid?
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Auction without Reserve
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What is the death or incompetency of either party terminates the offer?
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Death or incompetency of the offeror or offeree
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What is withdrawal of an offer by the offeror terminates the offer?
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Revocation
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What is withdrawal of an offer by the offeror terminates the offer?
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Revocation
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What is express words or conduct by the offeree that rejects an offer?
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Rejection
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What is express words or conduct by the offeree that rejects an offer?
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Rejection
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What is a response by an offeree that contains terms and conditions different from or in addition to those of the offer?
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Counteroffer
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What is a response by an offeree that contains terms and conditions different from or in addition to those of the offer?
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Counteroffer
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What is the offer terminates if the subject matter of the offer is destroyed through no fault of either party prior to its acceptance?
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Destruction of the subject matter
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What is the offer terminates if the subject matter of the offer is destroyed through no fault of either party prior to its acceptance?
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Destruction of the subject matter
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What is the death or incompetency of either party terminates the offer?
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Death or incompetency of the offeror or offeree
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What is the death or incompetency of either party terminates the offer?
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Death or incompetency of the offeror or offeree
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What is the enactment of a statute, regulation, or court decision that makes the object of an offer illegal?
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Supervening Illegality
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What is an offer terminates when a stated time period expires?
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lapse of time
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What is a manifestation of assent by the offeree to the terms of the offer in a manner invited or required by the offer as measured by the objective theory of contracts?
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Acceptance
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What requires the offeree to accept the offeror's terms?
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Mirror Image Rule
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What is not considered acceptance even if the offeror states that it is?
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Silence
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What establishes the following rules concerning the time and mode of acceptance?
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Contract Law
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What is a rule that states that an acceptance is effective when it is dispatched, even if it is lost in transmission?
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mailbox rule
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What is the acceptance must be properly dispatched; properly addressed, packaged, and posted to fall within the mailbox rule?
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Proper Dispatch Rule
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What is a stipulation in the offer that says the acceptance must be by a specified means of communication; use of an unauthorized means of communication makes acceptance not effective?
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Express Authorization
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What is mode of acceptance that is implied from what is customary in similar transactions, usage of trade, or prior dealings between the parties?
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Implied Authorization
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What are the purposes of criminal laws?
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Allow people to coexist peacefully, allow commerce to flourish, protect people and property from injury by others
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Who is presumed innocent until proven guilty?
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Person charged
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What is on the government?
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Burden of Proof
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What is a violation of a statute or ordinance for which the government imposes a punishment?
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Crime
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What are the activities considered to be crimes within their jurisdiction; and the penalties that will be imposed for their commission?
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State penal codes
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What is a comprehensive federal criminal code?
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Federal crimes
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What often provide for criminal violations and penalties?
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State and federal regulatory statutes
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What are penalties imposed for crimes?
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Fines, imprisonment, both fines and imprisonment and probation
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Who is the plaintiff in the criminal lawsuit?
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government
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The government is represented by a lawyer called the what?
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Prosecutor
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The accused is represented by a what?
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Defense Attorney
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What are the most serious kinds of crimes?
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Felonies
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What does mola in se mean?
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inherently evil
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What is usually punishable by imprisonment; mandatory sentencing for some crimes?
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Felonies
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What are less serious than felonies?
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Misdemeanors
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What does mala prohibita mean?
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not inherently evil but are prohibited by society
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What type of crimes are against property?
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misdemeanors
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What are usually punishable by fines and imprisonment up to one year?
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misdemeanors
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What are crimes that neither a felony nor a misdemeanor?
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Violations
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What is when the defendant must have actually performed the prohibited act?
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Criminal Act
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What is the actual performance of the guilty act?
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Actus Rea
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What is possession of the requisite state of mind when act performed?
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Mens Rea
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What is accused purposefully, intentionally, or with knowledge commits a prohibited act?
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Specific Intent
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What is showing of recklessness or lesser degree of mental culpability?
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General Intent
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What imposes criminal liability without a finding a mens rea?
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Non-Intent Crime
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How can you read a person's mind?
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Juries may infer an accused's intent from the facts and circumstances of the case
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What is a specific intent example?
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Murder
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What is a general intent example?
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Manslaughter (intended to injure but death resulted) (also often associated with extreme negligence)
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What is a non-intent crime?
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Involuntary Manslaughter Criminally Negligent Homicide
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What are the criminal procedure consists of several distinct stages including?
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Arrest, indictment or information, arraignment, plea bargaining
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Police must obtain arrest warrant based on showing what?
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Probable Cause
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What is grand jury; determines whether there is enough evidence to hold accused for trial; serious crimes?
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Indictment
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What is magistrate office; determines whether there is enough evidence; lesser crimes?
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Information
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What is next procedure if indictment or information issued?
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Arraignment
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What allows accused to plead to lesser crime?
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Plea Bargaining
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In common law, what is the taking of personal property by use of fear or force?
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Robbery
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In common law, what was the breaking and entering of a dwelling at night now extended to include daytime entry of any structure?
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Burglary
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In common law, what was the wrongful and fraudulent taking of another person's personal property?
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Larceny
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What is crime of knowingly received stolen property with the intention of depriving rightful owner of that property?
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Receiving Stolen Property
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In common law, what was the malicious or willful burning of another's dwelling now extended to all structures?
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Arson
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What is obtaining a property from another, with their consent, induced through actual or threatened force, violence, or fear; blackmail?
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Extortion
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What is written documents fraudulently made or altered?
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Forgery
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What is fraudulent conversion of property by person to whom property is entrusted?
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Embezzlement
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What is referred to as a kickback or payoff?
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Commercial Bribery
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What is obtaining title to property through deception or trickery?
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Criminal Fraud
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What makes it illegal for American companies, or their officers, directors, agents, or employees, to bribe a foreign official, a foreign political party official, or a candidate for foreign political office?
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The Foreign Corrupt Practices Act
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What makes it a federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an enterprise through a pattern of activity?
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Racketeer Influenced and Corrupt Organizations Act (RICO)
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What is when two or more persons enter into an agreement to commit a crime; requires an overt act; crimes does not have to be committed?
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Criminal Conspiracy
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What is when knowingly engage in monetary transaction through financial institution involving property worth more than $10,000?
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Money Laundering
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What is when corporations may be held criminally liable for actions of their officers, employees, or agents?
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Corporate Criminal Liability
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What protects persons and corporations from overzealous investigative activities by the government?
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4th amendment
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What is when evidence obtained from an unreasonable search and seizure can generally be prohibited from introduction at a trial or administrative proceeding against the person searched?
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Exclusionary Rule
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What is the act assists the government in detecting and preventing terrorist activities and investigating and prosecuting terrorists?
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Federal Antiterrorism Act of 2001
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What states that no person shall be compelled in any criminal case to be a witness against him or herself?
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5th amendment
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What is the supreme court held that the Fifth amendment right against self-incrimination is not useful unless suspect had knowledge of the right?
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Miranda Rights
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What is when client can tell his or her lawyer anything about the case without fear that the attorney will be called as a witness against the client?
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Attorney-Client Privilege
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What is when government may offer person immunity from prosecution in exchange for testimony?
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Immunity from Prosecution
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What protects persons from being tried twice for the same crime?
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Double Jeopardy Clause
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What guarantees certain rights to criminal defendants; right to a public trial?
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6th amendment
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What protects criminal defendants from torture or other abusive punishment; clause does not prohibit capital punishment?
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8th amendment
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