Legal Studies -- 1St Test

Front 1

minimum rationality

Back 1

height, age, weight, marriage
rational connection to permissible law

Front 2

quasi-strict scrutiny

Back 2

gender
law is substantially related to an important govt interest

Front 3

strict scrutiny

Back 3

race, national origin, legitimacy, plus fundamental rights such as voting, travel, appeal
law is necessary to a compelling state interest

Front 4

difference between due process and equal protection

Back 4

due process applies to everyone (no one can buy alcohol on sundays)
euql protection applies to specific classes of people (only over 21 can buy alcohol)

Front 5

privilege and immunities clause

Back 5

??

Front 6

due process clause

Back 6

personal jurisdiction, long-arm statutes
cannot be arbitrary, capricious, unreasonable
applies to everyone

Front 7

incorporation doctrine

Back 7

5th: no person shall be deprived
14th: no state shall be deprived
states must follow fed govt's protection of individual rights; supremacy clause covers what congress can do to you

Front 8

standards of review

Back 8

minimum rationality
quasi-strict scrutiny
strict-scrutiny

Front 9

federal regulation

Back 9

commerce clause
specification of boundaries

Front 10

police powers (state regulation)

Back 10

public health, safety, general welfare, public morality

Front 11

exclusive federal jurisdiction and preemption

Back 11

state cannot tax because it is foreign commerce
cannot regulate where there is a need for national uniformity

Front 12

supremacy clause

Back 12

makes null state legislation that conflicts with federal law (ex: bankruptcy law)

Front 13

no discrimination against interstate commerce

Back 13

would limit out-of-state competition
no undue burden on interstate commerce

Front 14

regulatory power of congress "relating to the economy"

Back 14

if widgets pollute, pollution is part of your property
govt issue restrictions on pollution and has specified boundaries that were previously ambiguous

Front 15

definition of property

Back 15

right to exclude (ownership)
right to posses (physical and legal)
right to use (use itself is an object)
right to transfer (refers to business)

Front 16

property and prosperity

Back 16

promotes incentive
promotes capital formation
makes resources divisible

Front 17

you become an owner by:

Back 17

exchange
possession (including adverse)
confusion
accession (transforming)
gift (including testamentary)

Front 18

types of resource ownership

Back 18

free, simple, absolute, and defeasible
life estate
leasehold estate
concurrent ownership

Front 19

types of deeds to real estate

Back 19

full warranty deed
special warranty deed
quiet-claim deed
registration of property
property ownership and eminent domain

Front 20

intellectual property

Back 20

an exclusive legal fence; objects of law are not physical but are applications of ideas

Front 21

trade secrets

Back 21

70-75% of value of international corporations have to do with trade secrets

Front 22

examples of trade secrets

Back 22

marketing strategies
researching plans
customer information and lists

Front 23

trade secret information

Back 23

has economic value
is not generally known to the public
there is a reasonable effort to keep it secret

Front 24

industrial espionage

Back 24

misappropriation of trade secrets (a civil wrong, tort case, also a crime)

Front 25

espionage act

Back 25

federal crime to steal trade secrets

Front 26

obtaining a patent from the PTO

Back 26

explain with words and drawings
why the invention differs from prior art
precisely describe the claim that deserves the patent
role of the patent examiner (not the patent attorney)

Front 27

patentable subject matter

Back 27

processes
machines
compositions of matter
certain plants
nonfunctional designs of manufactured article

Front 28

patent requirements:

Back 28

nonobviousness
novelty
usefulness

Front 29

patent duration and enforcement

Back 29

1. Utility patents, 20 years
2. Plant patents, 17 years
3. Design patents, 14 years

Front 30

A patent is a presumption that you have a legal fence

Back 30

a. You don’t actually know this until it is tested in court
b. That the patent is obvious is a common defense

Front 31

different "marks"

Back 31

1. Servicemark
2. Trademark
3. Certification mark
4. Collective mark

Front 32

trademark registration

Back 32

requirement of "distinctiveness"
cannot be similar to other marks
cannot be immoral
must be descriptive
cannot be generic
cannot be of the flag
cannot be of likeness of living persons or dead presidents

Front 33

trademark enforcement

Back 33

1. Civil violation is termed infringement
2. Civil remedies include damages, injunctions, and destruction of infringing products

Front 34

Defenses to civil violation include

Back 34

a. Mark is not distinctive
b. Little change of confusion
c. Fair use

Front 35

Copyright protection arises automatically for a work that is:

Back 35

1. Original
2. Fixed in a tangible medium
3. Creative
4. Applies to literary, dramatic, musical, graphic, choreographic, audio, or visual works

Front 36

Cannot sue for statutory copyright infringement unless

Back 36

work registered with copyright office and copyright symbol accompanies work

Front 37

copyright length

Back 37

Runs for the author’s lifetime, plus 70 additional years for works published after 1977

Front 38

“Fair use” (the most common civil defense); court looks at:

Back 38

i. Commercial or educational
ii. The nature of the copyrighted work
iii. Amount of copying in relation to the work as a whole
iv. Effect of the use on the potential market

Front 39

Digital millennium copyright act

Back 39

i. Makes illegal the effort to get around technological copyright protections
ii. Exempts internet service providers under certain circumstances from copyright violation

Front 40

three main concepts:

Back 40

law
rule of law
property

Front 41

limitations on property

Back 41

if it harms others
redistribution (taxes)
eminent domain

Front 42

property is:

Back 42

absolute
not infinite
ambiguous boundaries
ultimately serves the common good
more productive, not necessarily superior

Front 43

a way to solve disputes:

Back 43

did you cross a property line and if so, where is that line?
how do you enforce boundaries
how do you own it?

Front 44

sources of law

Back 44

legislation
administrative law
consitutions
case law (from courts)

Front 45

common law

Back 45

originated from decisions of royal judges
became "common" to all of England
today involves mostly property, contract, and tort law

Front 46

other classifications:

Back 46

common and civil
public and private
criminal add civil
substantive and procedural

Front 47

criminal law

Back 47

felonies (1+ year in prison)
misdemeanors (>1yr in prison)

Front 48

distinguish the following:

Back 48

1. Suing > liability > burden of proof and balance scale
2. Violating > guilty > beyond a reasonable doubt (not innocent!!)

Front 49

Substantive law and procedural law

Back 49

i. Substantive law involves rights and duties between people
ii. Procedural law involves how the substantive law is administered
iii. Ex: tort law is substantive; due process is substantive and procedural

Front 50

cause of action

Back 50

negligence
strict product liability
breech of contract

Front 51

negligence

Back 51

failure to use reasonable care

Front 52

strict product liability

Back 52

ex: defendant was a commercial seller who sold a defective product causing you injury (plaintiff has burden of proof)

Front 53

breech of contract

Back 53

responsible for value of damage
implied warranty of merchantibility: must prove merchant sells a product not fit for ordinary use

Front 54

jurisdiction

Back 54

subject matter
personal

Front 55

subject matter jurisdiction

Back 55

the power of the law to deal with certain legal issues -- limited for federal courts
a. Must involve the US constitution
b. Federal laws/regulations
c. Diversity and citizenship cases

Front 56

personal jurisdiction

Back 56

minimum contacts; where the defendant is a resident or where they did something

Front 57

standing to sue

Back 57

why plaintiff is proper plaintiff to sue defendant
must prove direct relationship and negative effect

Front 58

prayer for judgment

Back 58

what you want (damages, money, etc)

Front 59

service of process

Back 59

delivering a summons
serving process

Front 60

long arm statute

Back 60

provide for the service of process beyond states' boundaries due process

Front 61

must have sufficient minimum contacts s.t. the suit doesn't offend traditional notions of fair plan and substantial justice

Back 61

a. Tort in another state
b. Owning property that is the subject of the lawsuit
c. Transacting business that is the subject of a lawsuit
d. Criminal cases: crime must be in the state or criminal is extradited

Front 62

answer

Back 62

plaintiff files complaint, defendant answers
admit or deny allegations
failure to respond results in a default judgment by courts

Front 63

steps to litigation

Back 63

1. Plaintiff files complaint alleging cause of action
2. Defendant answers allegations and brings counterclaims
3. Plaintiff answers counterclaims

Front 64

common motions before trial

Back 64

motion to dismiss
motion for summary judgment

Front 65

attorney fees

Back 65

hourly
flat
contingent

Front 66

motion to dismiss

Back 66

1. Failure to state a cause of action
2. Even if everything is true; it’s law not fact
3. Ex: suing neighbor for having a green car

Front 67

motion for summary judgment

Back 67

after discovery, before a trial
asks viewing in the facts in the light most favorable for the non-moving party, the facts compel a judgment for the moving party
(can be brought by plaintiff or defendant)

Front 68

other motions

Back 68

motion for a directed verdict
motion for a judgment notwithstanding the verdict

Front 69

discovery

Back 69

the process by which both sides find out all the facts they can
"drawing the battle lines"

Front 70

discovery methods

Back 70

written interrogatory
oral deposition

Front 71

subpoena

Back 71

order form the court to product something

Front 72

scope of discovery

Back 72

no free reign
can only request info likely to lead to evidence that would be admissible in a trial

Front 73

preemptory challenges

Back 73

each side has 15 (most any reason except race and gender

Front 74

voir dire

Back 74

questioning, examination process

Front 75

trial

Back 75

opening statements
plaintiff's case
motion for a directed verdict
defendant's case
closing arguments
jury instructions
jury deliberations
verdict
motion for judgment notwithstanding the verdict
collecting damages
appeal

Front 76

plaintiff's case

Back 76

direct examination of witnesses
cross examination of witnesses
burden of proof falls on plaintiff

Front 77

motion for directed verdict

Back 77

even if all witnesses testified truthfully, it still doesnt prove what the plaintiff alleged in the complaint

Front 78

jury instructions

Back 78

about law, causes of action
about damages
about burden of proof

Front 79

jury deliberations

Back 79

some must be unanimous; failure to make a decision results in a mistrial

Front 80

collecting damages

Back 80

writ of execution
writ of garnishment

Front 81

writ of execution

Back 81

can order sheriff to seize asset if not paid

Front 82

writ of garnishment

Back 82

order to employer of defendant to pay wages/salary to plaintiff until damages have been paid (w/o risk of being fired)

Front 83

appeal

Back 83

a legal claim that the judge made a mistake or wrongfully interpreted or ignored the law (allowing unrelated evidence, denying a motion)

Front 84

terms of appeal:

Back 84

appeals: appellate (former plaintiff)
responds: apellee (former defendant)

Front 85

the appeal

Back 85

posting of appeal bond
written briefs and oral arguments
majority and dissenting opinions
writ of certiorari

Front 86

res judicata

Back 86

court cannot try the legal issue twice (not the same as double jeopardy)

Front 87

holding

Back 87

exactly what the court said about a specific issue raised on appeal; ex: court says that fan assumes the risk

Front 88

dicta

Back 88

anything else the court says; ex: court says outcome is the same whether the object is a ball, bat, etc (offhand comment)

Front 89

alternatives to litigation

Back 89

doesnt have the range of compulsory discovery and have very limited appeal

Front 90

mediation

Back 90

arbitration without enforcement; not legally binding

Front 91

arbitration

Back 91

faster, cheaper, private, no jury or witnesses, neutral arbitrator

Front 92

voluntary arbitration

Back 92

you voluntarily agree to a contract that says if a dispute arises, you will choose arbitration over mediation

Front 93

process of voluntary arbitration

Back 93

contractual agreement
submission of issues
hearing
award
ltd appeal
enforcement

Front 94

mandatory arbitration

Back 94

required in some states
limited application
de novo trial (can go to court)

Front 95

the "hook"

Back 95

if you don't improve your position from arbitration in court, you pay the other side's legal fees

Front 96

federal arbitration act

Back 96

state court systems must recognize arbitration agreements; does not require arbitration

Front 97

federalism: state

Back 97

state can do anything the constitution does not say it cannot do (can act in any grey areas)

Front 98

federalism: federal

Back 98

can act only where the constitution explicitly allows

Front 99

checks and balances

Back 99

legislature makes laws
courts interpret laws
president signs laws

Front 100

constitutional history:
1866-present

Back 100

adaptation
original intent and constitutional relativity

Front 101

article I

Back 101

federal powers of the govt are specified, state powers are not

Front 102

Article I, Sec 8

Back 102

commerce clause

Front 103

commerce clause

Back 103

congress can regulate domestic, international, and Indian trade (interpreted to cover all economic activity -- taxation is not covered by this)

Front 104

taxation

Back 104

must be equal
progressive tax later amended

Front 105

Article II

Back 105

establishes executive branch
sec 1 (method of election)
sec 2 (powers)
sec 4 (removal)

Front 106

Article III

Back 106

establishes supreme court (remember, federal courts have limited jurisdiction)

Front 107

Article IV

Back 107

full faith and credit clause
privileges and immunities clause
criminal extradition
admission of new states by congress

Front 108

full faith and credit clause

Back 108

each state must respect other states' laws
limitation: congress can decide which laws must be followed (ex: gay marriage is an exception made by congress)

Front 109

Article V

Back 109

establishes how constitution is amended

Front 110

Article VI

Back 110

supremacy clause: federal law is the law of the land !!

Front 111

federal law

Back 111

limited and specified
not all powerful
trumps state law

Front 112

Amendment I

Back 112

freedom of religion
freedom of speech and press
freedom to assemble and petition govt

Front 113

establishment clause

Back 113

govt cannot favor religion
govt cannot establish religion
govt cannot compel someone to a religion
govt cannot found/fund schools

Front 114

free exercise clause

Back 114

govt cannot prohibit you from practicing
govt cannot prohibit you from founding/funding schools

Front 115

freedom of press

Back 115

want to avoid prior restraint (censorship) to avoid "chilling" speech; doesn't mean you won't get into trouble later
exception: publishing things that compromise the nation's security

Front 116

defamation

Back 116

libel in writing
slander in speech
public figures have a higher standard and must prove actual malice

Front 117

freedom of speech

Back 117

cannot regulate based on content

Front 118

symbolic speech

Back 118

expressive actions (e.g. protest armbands for vietnam war)

Front 119

overbreadth

Back 119

exception to normal standing rules; the ability to sue on someone else's behalf

Front 120

Amendment II

Back 120

the right to bear arms

Front 121

Amendment IV

Back 121

prohibits "unreasonable" searches
requires search warrant

Front 122

Amendment V

Back 122

indictment by grand jury
double jeopardy clause
self-incrimination
eminent domain

Front 123

eminent domain clause

Back 123

govt can take your land for public use and must compensate you (fair market value)